Justia.com Opinion Summary: At issue in this medical malpractice action was a requirement of the Healthcare Malpractice Claims Act (HCMCA) that a plaintiff in a medical malpractice action file a proper Certificate of Merit (Certificate), and whether, in this case, Respondent's filing of a Certificate that did not meet the requirements of Code Ann. Cts. & Jud. Proc. 3-2A-02 required dismissal, without prejudice, of the underlying claim rather than the grant of summary judgment to Petitioner. Here the circuit court granted summary judgment in favor of Petitioner. The court of special appeals reversed, holding that because Respondent filed a Certificate of an expert that did not meet the requirements of section 3-2A-02, dismissal without prejudice of the underlying claim was required. On appeal, Petitioner argued that because Respondent's attesting expert was not qualified to attest to the standard of care allegedly breached by Petitioner, summary judgment was proper. The Court of Appeals affirmed, holding that the plain language of the HCMCA was clear and required dismissal without prejudice of the underlying claim for the filing of a non-compliant Certificate, regardless of the particular qualification or requirement the Certificate or its attestor failed to meet.
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Jeffery Breslin, et al. v. Ronald Powell, et al., No. 134, September Term 2010
STATUTORY INTERPRETATION – PLAIN MEANING RULE – HEALTH CARE
MALPRACTICE CLAIMS ACT – CERTIFICATE OF QUALIFIED EXPERT
REGARDING THE REQUIREMENTS FOR A CERTIFICATE OF A QUALIFIED
EXPERT IN A MEDICAL MALPRACTICE CLAIM SET FORTH IN MARYLAND CODE
(1974, 2006 REPL. VOL.), COURTS & JUDICIAL PROCEEDINGS ARTICLE, §§ 3-2A02 AND 3-2A-04, THE PLAIN LANGUAGE OF THE TWO SECTIONS, WHEN READ
TOGETHER PROPERLY, REQUIRES THAT WHEN A CERTIFICATE, FAILING TO
MEET ONE OR MORE OF THE REQUIREMENTS OF THE CERTIFICATE LISTED IN
THE STATUTE, IS FILED, A COURT OR ARBITRATION PANEL DISMISS THE
UNDERLYING CLAIM OR ACTION WITHOUT PREJUDICE, REGARDLESS OF
WHETHER THE REQUIREMENT(S) WITH WHICH THE CERTIFICATE DOES NOT
COMPORT IS LOCATED IN §§ 3-2A-02 OR 3-2A-04.
Circuit Court for Baltimore City
Case No. 24-C-04-007801
IN THE COURT OF APPEALS
OF MARYLAND
No. 134
September Term, 2010
JEFFERY BRESLIN, et al.
v.
RONALD L. POWELL, et al.
Bell, C.J.,
Harrell
Battaglia
Greene
Murphy
Adkins
Barbera,
JJ.
Opinion by Harrell, J.
Filed:
August 16, 2011
We wander here once more into the minefield of interpreting the Healthcare
Malpractice Claims Act (“HCMCA”) and its requirement that a plaintiff in a medical
malpractice action file a proper Certificate of Merit (“Certificate”).1 In several cases
considering whether certain Certificates failed to meet the requirements of Maryland Code
(1974, 2006 Repl. Vol., 2010 Supp.), Courts & Judicial Proceedings Article (“CJ”), § 3-2A04, we held that “the language of the [HCMCA] is clear and its meaning unambiguous.”
Walzer v. Osborne, 395 Md. 563, 581, 911 A.2d 427, 437 (2006). We shall stick to our guns
in that regard as we consider the requirements of a Certificate in CJ § 3-2A-04, adopted in
1986, in conjunction with the requirements of CJ § 3-2A-02,2 added in 2004.
Jeffery Breslin, M.D. (“Dr. Breslin” or “Petitioner”), attacks a judgment of the Court
of Special Appeals, which reversed the earlier grant of summary judgment by the Circuit
1
Maryland Code (1974, 2006 Repl. Vol., 2010 Supp.), Courts & Judicial Proceedings
Article (“CJ”), § 3-2A-04(b) requires a certificate of a qualified expert to be filed with a
medical malpractice claim. Various sources refer interchangeably to the document as a
“Certificate of Merit” or a “Certificate of Qualified Expert”; we shall use “Certificate” here
for simplicity.
2
The relevant text of CJ § 3-2A-02(c) provides:
1. In addition to any other qualifications, a health care
provider who attests in a certificate of a qualified expert or
testifies in relation to a proceeding before a panel or court
concerning a defendant’s compliance with or departure from
standards of care:
A. Shall have had clinical experience, provided
consultation relating to clinical practice, or taught medicine in
the defendant’s specialty or a related field of health care, or in
the field of health care in which the defendant provided care or
treatment to the plaintiff, within 5 years of the date of the
alleged act or omission giving rise to the cause of action . . . .
Court for Baltimore City in his favor. The intermediate appellate court held that filing a
Certificate of an expert that does not meet the requirements of CJ § 3-2A-02 requires
dismissal, without prejudice, of the underlying claim, rather than the grant of summary
judgment in favor of the defendant. According to the Court of Special Appeals, in the event
of failure to meet any of the requirements for the Certificate, regardless of the provision of
the HCMCA where the specific requirements appear, therefore, dismissal without prejudice
is the appropriate remedy.
Petitioner claims before us that the plain language of CJ § 3-2A-02 allows for
summary judgment as proper relief because CJ § 3-2A-02 does not provide explicitly a
remedy for failure to meet its requirements, but states explicitly that the Maryland Rules
apply to the HCMCA (Md. Rule 2-501 provides for summary judgment). Accordingly, as
the argument goes, because Respondent’s attesting expert, Ronald Burt, M.D. (“Dr. Burt”),
an anesthesiologist, was not qualified to attest to the standard of care breached allegedly by
Dr. Breslin, a vascular surgeon, pursuant to CJ § 3-2A-02, summary judgment was a proper
disposition of the case. Finally, Petitioner claims that the Court of Special Appeals’s
decision is inconsistent with the legislative purpose behind the need for a Certificate, which
is to “weed out” frivolous medical malpractice claims.
We hold that, for reasons to be explained more fully infra, the plain language of the
HCMCA, reading §§ 3-2A-02 and 3-2A-04 together, is clear, and requires dismissal without
prejudice of the underlying claim for the filing of a non-compliant Certificate, regardless of
the particular qualification or requirement the Certificate or its attestor fails to meet.
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Accordingly, we affirm the judgment of the Court of Special Appeals.
FACTS AND LEGAL PROCEEDINGS
Jackie D. Powell3 was admitted to Good Samaritan Hospital on 31 October 2002 for
a hepatorenal arterial bypass procedure.4 Monford Wolf, M.D. (“Dr. Wolf”), a boardcertified anesthesiologist, administered epidural anesthesia to Mr. Powell for the procedure
while Dr. Breslin, a board-certified vascular surgeon, performed the procedure. Mr. Powell
suffered an ischemic spinal cord injury, secondary to an epidural hematoma,5 as a result of
the administration of the epidural anesthesia. Subsequent to the spinal cord injury, Mr.
Powell developed paralysis from the waist down, which, according to Powell, caused
ultimately Mr. Powell’s death on 8 March 2004. Powell claims that Dr. Breslin deviated
negligently from the standard of care by failing properly to: (1) evaluate pre-operatively the
decedent as a candidate for epidural anesthesia; (2) place an epidural needle and catheter in
decedent’s back; (3) monitor and document the physiological effects of epidural anesthesia
3
Jackie D. Powell, the decedent, will be referred to as “Mr. Powell” throughout this
opinion. Upon Mr. Powell’s death, his son, Ronald L. Powell, filed this suit as personal
representative, on behalf of Mr. Powell’s estate, and was joined by Mr. Powell’s other
children. We shall refer to the plaintiffs/respondents of this suit, collectively, but singularly,
as “Powell” for simplicity.
4
Prior to the procedure, Mr. Powell was undergoing dialysis due to failing kidneys.
The procedure was consented to by Mr. Powell in hopes that the surgery would revitalize one
of his kidneys so that he could discontinue dialysis.
5
An epidural hematoma is “[a] localized accumulation of blood in the space between
the dura mater (the outermost covering of the brain) and the inner surface of the cranium (the
rounded portion of the skull). It usually occurs in a fracture of the skull, when blood vessels
are torn.” 2 J.E. SCHMIDT, ATTORNEYS’ DICTIONARY OF MEDICINE AND WORD FINDER 105
(1990).
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and catheter placement during the peri-operative period; and (4) respond timely to decedent’s
complaints of leg pain and numbness.
The present litigation, inspired by the death of Mr. Powell, originated on 30 July 2004
as a Health Claims Arbitration Proceeding pursuant to CJ § 3-2A-03. In conjunction with
the claim, Powell filed with the Health Care Alternative Dispute Resolution Office
(“HCADRO”)6 a Certificate,7 and served notice of intent to waive arbitration and transfer the
action to the Circuit Court for Baltimore City. The original complaint in the Circuit Court,
filed in October 2004, named as defendants: Dr. Wolf; his professional association, Hunt
Valley Anesthesia Associates, P.A.; and Good Samaritan Hospital of Maryland, Inc. (“Good
Samaritan Hospital). The complaint alleged a survival claim sounding in negligence, as well
as a wrongful death claim. Approximately one month later, in November 2004, Powell filed
a First Amended Complaint, adding counts against Good Samaritan Hospital.
On 5 August 2005, Powell filed an Amended Statement of Claim with the HCADRO,
adding as defendants Dr. Breslin and his professional association. A new Certificate
accompanied this filing, which attested to departures from the standard of care by “Jeffery
Breslin, M.D., . . . Drs. Kremen, Breslin & Fraiman, P.A., and Good Samaritan Hospital,
6
Prior to 11 January 2005, this office was known as the Health Claims Arbitration
Office (“HCAO”). See CJ § 3-2A-03. We shall refer to the office by its current name, the
Health Care Alternative Dispute Resolution Office (“HCADRO”).
7
The original Certificate of Merit was signed by Dr. Henry Rosenberg, a boardcertified anesthesiologist as it turns out. The Certificate, however, does not stipulate Dr.
Rosenberg’s qualifications or specialties, as required by the HCMCA.
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Inc.” Attested to by Ronald Burt, M.D. (“Dr. Burt”), a board-certified anesthesiologist,
pursuant to CJ § 3-2A-02, the new Certificate stated, “I . . . certify that I have had clinical
experience, provided consultation relating to the clinical practice, and [/] or taught medicine
in the field of Anesthesiology and/or the related field of general surgery, within five (5) years
of the date of the . . . acts or omissions giving rise to this claim.” Powell filed subsequently
a notice to waive arbitration and, on 25 August 2005, filed a Second Amended Complaint
in the Circuit Court, adding a survival claim sounding in negligence, as well as a wrongful
death claim against Dr. Breslin and his professional association.
After several attempts by the defense, beginning in March 2006, to depose Dr. Burt,
his deposition was taken on 6 September 2006.8 At the deposition, Dr. Burt was asked about
his qualifications to testify and certify as to the standard of care for a vascular surgeon. The
pertinent portion of the transcript revealed the following exchanges:
[Defense Counsel]: Is it fair to say that you don’t hold yourself
out as an expert in the field of vascular
surgery?
[Dr. Burt]:
That’s right.
[Defense Counsel]: Do you hold yourself out as an expert in
the field of general surgery?
[Dr. Burt]:
No.
[Defense Counsel]: Is the only field which you hold yourself
out as an expert anesthesiology?
[Dr. Burt]:
Exactly.
8
Delays in depositions of various expert witnesses were caused apparently by
scheduling disputes between Powell’s counsel and counsel for Good Samaritan Hospital.
Adding to the delay, Powell’s counsel notified defense counsel in May 2006 that he would
be undergoing an unexpected surgery. By 16 August 2005, Good Samaritan Hospital settled
with Powell and a stipulation of dismissal was filed as to those claims.
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***
[Defense Counsel]: With respect to the training that a vascular
surgeon may or may not have regarding
diagnosing epidural hematomas, would
you defer to a vascular surgeon to offer
testimony as to what, if any, training a
vascular surgeon should have in that issue?
[Dr. Burt]:
Yes.
[Defense Counsel]: And with respect to the ability of a
vascular surgeon to diagnose an epidural
hematoma, based on their training, would
you again defer to the expertise of a
vascular surgeon on that issue?
[Dr. Burt]:
Yes, I would.
In light of the foregoing deposition revelation, Dr. Breslin filed a Motion to Dismiss or, in
the Alternative, for Summary Judgment9on the grounds that Powell failed to comply with the
requirements of CJ § 3-2A-02, mandating generally that any expert who attests in a
Certificate to a departure from the standards of care on the part of a health care provider must
be board-certified and have clinical, consulting, or teaching experience in the health care
provider’s specialty.
Powell tendered three arguments why the action should not be dismissed, despite Dr.
Burt’s admission in deposition that he was unqualified to attest to the ability of a vascular
surgeon to detect an epidural hematoma and, thus, was not qualified to attest to the standard
9
Dr. Breslin stated in his Motion to Dismiss or, in the Alternative, for Summary
Judgment, that “[w]hen a proper certificate is not filed, it is tantamount to not having filed
a certificate at all. When the certificate requirement is not met, the Court is required to
dismiss the action.” (Citations omitted).
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of care of a vascular surgeon and the alleged breach thereof.10 First, the action originated in
July 2004, one year before the amendment to CJ § 3-2A-02 was enacted that added required
qualifications of an expert attesting to the standard of care in a Certificate. See CJ § 3-2A02(c)(2)(i) (“This paragraph applies to a claim or action filed on or after January 1, 2005.”).
As this argument goes, the substance of the original claim was not changed by adding Dr.
Breslin as a defendant; therefore, the more stringent requirements should not apply. The
second argument Powell offered was that there is an overlap between the two disciplines –
vascular surgery and anesthesiology – that should allow Dr. Burt to attest to and testify
regarding the treatment required for an epidural hematoma. To this end, Dr. Breslin’s expert
witness, Dr. Gary Ruben, testified in deposition (following Dr. Burt’s deposition) that
vascular surgeons and anesthesiologists alike possess the knowledge and ability to diagnose
a spinal hematoma. Moreover, Dr. Ruben, a vascular surgeon, was intended to be offered
by the defense at trial as an expert with regard to the standard of care and treatment rendered
by both Dr. Breslin and Dr. Wolf. Finally, Powell noted that he had secured a general
surgeon who was prepared to testify at deposition and/or trial (and who also signed a
Certificate) attesting to the departures from the standard of care by Dr. Breslin.
The Circuit Court, unpersuaded by Powell’s arguments, granted summary judgment
in favor of Dr. Breslin, explaining that, “[the] legislative directive, coupled with the Court
10
Of particular relevance to the present case, although the new Certificate attested
only to departures from the standard of care by Dr. Breslin, his professional association, and
Good Samaritan Hospital, the record reflects that Dr. Wolf, the defendant anesthesiologist,
remained a party to the case at the time the new Certificate was filed.
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of Appeals’ signal that the [L]egislature’s directives are to be strictly applied, convinces this
Court that with the passage of the [HCMCA], Dr. Burt is not qualified to attest to the alleged
breach of the post-operative standard of care of Dr. Breslin.” Powell filed a Motion to
Reconsider11 on the grounds that the appropriate remedy for filing a Certificate that does not
meet the applicable standards is dismissal without prejudice, and granting summary judgment
“amounts to a dismissal with prejudice.” The Circuit Court denied this motion. Powell
followed with a Motion to Alter or Amend Judgment Nunc Pro Tunc, which, in essence,
raised the same arguments as the reconsideration motion. In denying this motion, the Circuit
Court explained that:
[T]he fact that § 3-2A-04 contains both substantive and
procedural requirements does not lead this court to conclude that
§ 3-2A-04(b)(1)(i), requiring dismissal without prejudice,
applies any time a party fails to meet any prescribed procedural
or technical requirements for filing a certificate, whether
contained in § 3-2A-02 or § 3-2A-04.
***
A court could dismiss a plaintiff’s claim without
prejudice for failing to meet the requirements in § 3-2A-02.
However, the consequence would be that a plaintiff could
continue to come back to the court countless times to try its luck
with a different health care provider . . . . The effect on a
11
Powell, either in the Motion to Reconsider or in subsequent motions and/or appeals,
did not allege that Dr. Burt was a qualified expert in the field of vascular surgery, thus
meeting the requirements of CJ §3-2A-02. “The parties agree that, under the provisions of
the [HCMCA] . . . Dr. Burt, an anesthesiologist, was not a qualified expert to opine upon the
standard of care applicable to Dr. Breslin, a vascular surgeon.” Powell v. Breslin, 195 Md.
App. 340, 350-51, 6 A.3d 360, 366 (2010). Therefore, we need not consider, in the present
case, whether an anesthesiologist would be unqualified wholly in every case to attest, in a
Certificate or in testimony, to the standard of care (and breach thereof) provided by a
vascular surgeon.
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defendant, in time and expense, would be unnecessarily
burdensome and would defeat the very reason the [L]egislature
enacted the statute: to weed out non-meritorious claims and to
reduce the costs of litigation.
(Citations, alterations, and quotation marks omitted.)
Powell noted timely an appeal to the Court of Special Appeals. In a reported opinion,
Powell v. Breslin, 195 Md. App. 340, 6 A.3d 360 (2010), the intermediate appellate court
reversed the Circuit Court’s judgment, explaining that:
We see no logic in the suggestion that an expert’s failure
to satisfy the requirements regarding clinical experience and
areas of specialty certification required by CJ § 3-2A02(c)(2)(ii) should be treated differently than an expert’s failure
to satisfy the requirement of the 20 percent rule, or the
requirement that a certifying expert may not be a party or an
employee or partner of a party delineated in CJ § 3-2A-04(b), or,
for that matter, any of the requirements as to the form and filing
of a certificate. To adopt such an approach would be an
endorsement of an interpretation of the statute which imposes
inconsistent sanctions for the filing of noncompliant certificates
that are deficient based upon the requirements in different
sections of the Act. No such dichotomy is expressly included in
the language of the Act, and we decline the opportunity to
judicially impose such a distinction.
***
In our interpretation of the plain language of the statute,
we conclude that the sanction for the failure to submit a fully
compliant certificate – whether the failure is in form, content or
qualifications of the attesting expert – is dismissal without
prejudice. See CJ § 3-2A-04(b)(1)(i)(1).
Powell, 195 Md. App. at 355, 6 A.3d at 368-69. Dr. Breslin filed a Petition for Writ of
Certiorari, which we granted, Breslin v. Powell, 418 Md. 190, 13 A.3d 798 (2011), to
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consider, in our own words:12
Whether, in a medical malpractice case where a party files a
certificate signed by an expert who does not meet the
qualifications set forth in CJ § 3-2A-02(c)(2)(ii), CJ § 3-2A04(b)(1)(i)(1) mandates dismissal without prejudice, regardless
of whether the case is pending in the HCADRO or the Circuit
Court at the time of the revelation?
STANDARD OF REVIEW
This case presents a question of statutory interpretation, and therefore, we review the
trial court’s disposition through summary judgment under a non-deferential standard of
review.13 See, e.g., Walter v. Gunter, 367 Md. 386, 392, 788 A.2d 609, 612 (2001)
(“[W]here the order involves an interpretation and application of Maryland statutory and case
12
Dr. Breslin posed two questions:
1. Whether a party should be permitted to undermine legislative
intent and arbitrate in bad faith by prosecuting a medical
malpractice suit that is founded upon a facially valid certificate
signed by an expert who does not satisfy even the broadest
qualifications set forth in MD Code Ann., Cts. & Jud. Proc. § 32A-02.
2. Whether summary judgment should have been affirmed by
the Court of Special Appeals given that the trial court’s ruling
was founded on the plain language of the statute and the
Maryland Rules.
13
Although Dr. Breslin agrees that the appropriate standard of review in the present
case is “de novo,” he arrives at this destination via an incorrect rhetorical path. In his brief,
Dr. Breslin states that “the issue for review before the court is whether the trial court
appropriately applied the remedy of summary judgment . . . .” Rather, the issue for review
is whether the statute in question contemplates the remedy of summary judgment in the first
instance.
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law, our Court must determine whether the lower court’s conclusions are ‘legally correct’
under a [non-deferential] standard of review.”). The task of this Court, therefore, is to
“‘determine whether the [Circuit Court’s decision] was legally correct.’” See Wash.
Suburban Sanitary Comm’n v. Phillips, 413 Md. 606, 618, 994 A.2d 411, 419 (2010)
(quoting Murphy v. Merzbacher, 346 Md. 525, 530-31, 697 A.2d 861, 864 (1997)).
DISCUSSION
I. The Family Tree of the Health Care Malpractice Claims Act
Over the past four decades, the Maryland marketplace has undergone three major
medical liability insurance “crises,” each of which engendered legislative responses changing
the statutory scheme regulating medical malpractice suits. See Final Report, November 2004
Governor’s Task Force on Medical Malpractice and Health Care Access, at 7 [hereinafter
TASK FORCE REPORT], available at http://images.ibsys.com/2004/1125/3949201.pdf.
A. The First Crisis: 1974 - 1983
In 1974, reacting to the upwardly spiraling cost of servicing medical malpractice
insurance policies, St. Paul Fire & Marine Insurance Company (“St. Paul”) notified the
Maryland Medical and Chirugical Faculty (“MedChi”), the leading professional organization
of doctors in the State, that St. Paul would not allow doctors to renew insurance coverage
plans that expired as of 1 January 1975. See Terry L. Trimble, The Maryland Survey: 19941995: Recent Development: The Maryland General Assembly: Torts, 55 MD. L. REV. 893,
895 (1996); Kevin G. Quinn, The Health Care Malpractice Claims Statute: Maryland’s
Response to the Medical Malpractice Crisis, 10 U. BALT. L. REV. 74, 77 (1980). St. Paul,
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at the time providing medical malpractice insurance to approximately eighty-five percent of
physicians based in Maryland, explained its withdrawal as caused by a deficit of nearly tenmillion dollars in providing medical malpractice insurance in Maryland at the then-current
rates. See Quinn, supra, at 77. The company was unable to offset these massive losses,
assertedly because the Insurance Commissioner of Maryland had refused its prior requested
rate increase.14 See Trimble, supra, at 895; Quinn, supra, at 77.
Although the trial court’s order mandating that St. Paul renew all applications and
outstanding policies at current rates was overturned eventually by this Court, the General
Assembly used the time while the litigation was ongoing to respond to the crisis. See
Trimble, supra, at 895. In its 1975 legislative session, the General Assembly created the
Medical Mutual Liability Insurance Society of Maryland (“Medical Mutual”), a physician-
14
St. Paul filed, in September 1973, a request to increase medical malpractice
insurance rates by 59.7 percent, which was denied by the Insurance Commissioner (“the
Commissioner”). See St. Paul Fire & Marine Ins. Co. v. Ins. Comm’r, 275 Md. 130, 133,
339 A.2d 291, 293 (1975). Following a conference between the Commissioner and St. Paul,
in January 1974, a rate increase request of 45.9 percent was approved. Id. MedChi,
however, rejected the increase and lodged subsequently a complaint with the Commissioner,
stating that a new insurance provider should be sought because the rate increases were
unacceptable. See St. Paul, 275 Md. at 134-35, 339 A.2d at 294. The Commissioner issued
an order requiring St. Paul to “accept for renewal at currently applicable rates the physicians’
and surgeons’ liability insurance (medical malpractice) policy of [the appellees].” St. Paul,
275 Md. at 131-32, 339 A.2d at 292 (internal quotation marks omitted). The order further
required St. Paul to “continue accepting the business of physicians’ and surgeons’ liability
insurance in the State of Maryland, by receiving all new applications . . ., and by considering
for renewal all outstanding policies for such insurance issued by [St. Paul] which have
expiration dates on or after January 1, 1975 . . . .” Id. (internal quotation marks omitted). The
order of the Commissioner was affirmed by Baltimore City Court. See id. Upon St. Paul’s
appeal to us, the judgment of the lower court was reversed and remanded with instructions
to vacate the order. See St. Paul, 275 Md. at 144, 339 A.2d at 299.
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owned mutual insurance company, in response to St. Paul’s threatened exit from the
Maryland medical malpractice insurance market. See Md. Code (1957, 1972 Repl. Vol.,
1977 Cum. Supp.), Art. 48A, §§ 548-56; TASK FORCE REPORT, supra, at 7. The creation of
Medical Mutual, however, was merely a bridge to greater relief in the 1976 session. In 1976,
the General Assembly sought to treat more effectively the malaise that was ailing the medical
malpractice insurance market. See Witte v. Azarian, 369 Md. 518, 527, 801 A.2d 160, 165
(2002) (“The General Assembly understood that the collapse of the malpractice insurance
market was rooted, to some extent in the manner in which malpractice claims arose and were
resolved, and . . . considered a variety of proposals designed to deal with those underlying
issues.”).
The General Assembly passed the Health Care Malpractice Claims Act, HCMCA, in
1976 to alter the manner in which malpractice claims were brought and resolved. See Witte,
369 Md. at 526, 801 A.2d at 165; see also Quinn, supra, at 81. The HCMCA modified the
existing medium in three main ways: (1) it created the Health Claims Arbitration Office “to
facilitate and expedite the resolution of malpractice claims”; (2) it created, through an
arbitration panel, an exclusive arbitration procedure for resolving all claims over $5,000; and
(3) it provided that the arbitration panel’s award would not be binding and all awards could
be rejected and recourse had thereafter to traditional judicial actions and remedies. See
Quinn, supra, at 81. Over the next two years, much litigation ensued, challenging the
constitutionality of the HCMCA and causing the arbitration scheme not to take effect until
1978, when the Court upheld ultimately as constitutional the HCMCA in Attorney General
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v. Johnson, 282 Md. 274, 313-14, 385 A.2d 57, 80 (1978), appeal dismissed, 439 U.S. 805,
99 S. Ct. 60, 58 L. Ed. 2d 97 (1978).15 See Witte, 369 Md. at 528, 801 A.2d at 166 (“The
arbitration scheme was essentially placed ‘on ice’ for about two years while challenges to its
legality worked their way through the courts.”). Though different aspects of the HCMCA
were challenged in several cases in 1980, in both state and federal courts,16 the arbitration
15
In Attorney General v. Johnson, 282 Md. 274, 385 A.2d 57 (1978), the plaintiffs
asserted that the Health Care Malpractice Claims Act, Md. Code (1974, 1977 Cum. Supp.),
§§ 3-2A-01 – 3-2A-09, was unconstitutional. Specifically, the plaintiffs claimed the
HCMCA vested impermissibly judicial power in a non-judicial body in violation of the
doctrine of separation of powers, abridged access to courts and trial by jury, and denied equal
protection of the law to malpractice claimants. See Johnson, 282 Md at 277, 385 A.2d at 59.
The Court of Appeals upheld the constitutionality of the statute in the face of each
challenge. First, the Court held that “the statute merely requires that malpractice claims be
submitted to nonbinding arbitration before suit may be filed,” and neither must the parties
accept the award nor can the panel enforce the award. Johnson, 282 Md. at 287, 385 A.2d
at 65. The panel, therefore, “exercise[s] no portion of the judicial power of this State in the
constitutional sense.” Johnson, 282 Md. at 288, 385 A.2d at 65. As to the second issue, the
Court held that the statute did not deprive individuals of either trial by jury or access to the
courts because the statute secures trial by jury upon pursuit of a claim in a circuit court. See
Johnson, 282 Md. at 299-301, 385 A.2d at 72-73. Finally, the Court concluded that “the
[HCMCA] bears a fair and substantial relation to its purpose and is thus not in contravention
of the fourteenth amendment or our Declaration of Rights.” Johnson, 282 Md. at 308, 385
A.2d at 77.
16
In Davison v. Sinai Hospital of Baltimore, Inc., 462 F. Supp. 778 (D. Md. 1978),
aff’d, 617 F.2d 361 (4th Cir. 1980), the federal District Court held that the use of the word
“court” in the HCMCA was meant to include federal as well as state courts. Next, in Bishop
v. Holy Cross Hospital of Silver Spring, 44 Md. App. 688, 410 A.2d 630 (1980), the Court
of Special Appeals held that “appropriate damages” included punitive damages and,
therefore, claims seeking punitive damages in addition to other damages must submit first
to arbitration. For a comprehensive discussion of these cases and other challenges to the
original HCMCA, refer to Kevin G. Quinn, The Health Care Malpractice Claims Statute:
Maryland’s Response to the Medical Malpractice Crisis, 10 U. BALT. L. REV. 74, 85-93
(1980).
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process seemed to staunch the bleeding of the first medical malpractice insurance crisis. See
id.
B. The Second Crisis: 1983- late 1990s
Less than ten years after the first medical malpractice insurance crisis, in 1983, the
General Assembly recognized, by adopting Senate Joint Resolution 14, that the State was in
the midst of its second malpractice insurance “crisis,” as the cost of malpractice insurance
had increased ten-fold since the first “crisis.” See Witte, 369 Md. at 528, 801 A.2d at 166;
see also S.J. Res. 14, 1983 Md. Laws J. Res. 9. In 1984, Senate Bill 16 presented several
recommended changes to tort doctrines and the manner in which malpractice claims were
processed. See Witte, 369 Md. at 529, 801 A.2d at 167. This Bill, among its proposed
changes, included a requirement of a “certificate [of] a ‘qualified expert’ attesting to a
departure from the standards of care or informed consent,” to be filed within ninety days of
filing the claim, and that the “qualified expert” selected may not receive more than fifty
percent of his or her income from testifying in malpractice cases. Id. Although the Bill did
not pass, its demise spawned, like a mushroom from decay, the creation of a task force whose
purpose was to investigate trends in medical malpractice claims. Id. In December 1985, the
task force reported to the General Assembly that, since 1984, medical malpractice liability
insurance premiums increased, depending on the medical specialty and hospital involved,
between thirty and 250 percent. See Debbas v. Nelson, 389 Md. 364, 378, 885 A.2d 802, 811
(2005); TASK FORCE REPORT, supra, at 7.
In 1986, the General Assembly enacted Senate Bill 559, which made several
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amendments to the HCMCA in response to the task force report. See Ch. 640 of the Acts of
1986; Witte, 369 Md. at 531, 801 A.2d at 168. Several provisions aimed to reduce total
amounts paid by insurers on claims or judgments – (1) a “cap” was placed on non-economic
tort damages at $350,000; (2) a reduction of damages was allowed if the plaintiff received
benefits from a collateral source (i.e., health or disability insurance); and (3) the statute of
limitations was decreased for a minor to bring a claim.17 See TASK FORCE REPORT, supra,
at 7; Trimble, supra, at 898; see also CJ § 3-2A-05(h).
Additionally, Senate Bill 559 amended provisions of the HCMCA relating to the use
of experts in medical malpractice cases. As proposed initially in S.B. 16 (1984), the
arbitration process was changed to require the filing of a qualified expert certificate and to
mandate that such an attesting expert receive no more than fifty percent of his or her income
directly from testimony in personal injury cases.18 See Witte, 369 Md. at 530, 801 A.2d at
17
In 2002, this Court held that the statute of limitations for minors in medical
malpractice cases was unconstitutional. See Piselli v. 75th St. Med., 371 Md. 188, 808 A.2d
508 (2002).
18
In Witte v. Azarian, 369 Md. 518, 530, 801 A.2d 160, 167-68 (2002), this Court
detailed the relevant part of Senate Bill 559:
[A] claim filed after July 1, 1986, shall be dismissed if, within
90 days after the date of the complaint, the claimant failed to file
with the HCAO a certificate of a “qualified expert” attesting to
a departure from the standards of care, and that, if the claimant
filed such a certificate and the defendant disputed liability, the
claim shall be adjudicated in favor of the claimant on the issue
of liability unless, within 120 days after the filing of the
claimant’s expert’s certificate, the defendant filed a certificate
of a “qualified expert” attesting to compliance with the
(continued...)
-16-
168; see also Bill Analysis of S.B. 559, at 6 (1986). This Bill enacted also a provision
incorporating the Maryland Rules of Procedure to “all practice and procedure issues arising
under the [HCMCA],” in an attempt to “codify the existing practice regarding the
applicability of the Maryland Rules to arbitration proceedings.” Committee Report on S.B.
559, at 2 (1986). The originally-proposed S.B. 559 was amended prior to its passage,
changing the language “shall be dismissed” to read “shall be dismissed without prejudice.”
See Conference Committee Amendments to S.B. 559, at 2 (1986) (emphasis added).
Although we could find no clear legislative history explaining further the origin of this
amendment, the amendment clarified any ambiguity regarding whether a claim would be
dismissed, with or without prejudice, for failure to file a Certificate.
At common law, prior to the 1986 amendment to the HCMCA, a claimant was not
required to file a certificate of a qualified expert and no similarly-stringent qualifications
were placed on the testifying expert in medical malpractice actions. See Walzer, 395 Md. at
18
(...continued)
standards of care.
***
The bill, as introduced, copied the Task Force’s
recommendation that “the attesting expert may not devote
annually more than 50 percent of the expert’s income from
testimony and other activity related to personal injury claims.”
(Quoting Final Report, December 1985 Joint Executive/Legislative Task Force on Medical
Malpractice Insurance, at 31)(second emphasis added). The fifty percent requirement was
struck by the Senate Judicial Proceedings Committee and changed to the current requirement
that the attesting expert “may not devote annually more than 20% of the expert’s professional
activities that directly involve testimony in personal injury claims.” CJ § 3-2A-04(b)(4)
(emphasis added); see also Witte, 369 Md. at 530, 801 A.2d at 167-68.
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577, 911 A.2d at 435 (“We acknowledge that, at common law, prior to the General
Assembly’s enactment of the [HCMCA], a claimant was not required to file a certificate of
qualified expert in a medical malpractice case.”); Radman v. Harold, 279 Md. 167, 171, 367
A.2d 472, 475 (1977) (“[W]e have never treated expert medical testimony any differently
than other types of expert testimony.”). In adding such requirements, the certificate
requirement is in derogation of the common law,19 intended to place additional requirements
on a claimant. See Carroll v. Konits, 400 Md. 167, 179, 929 A.2d 19, 26 (2007) (“By
enacting the 1986 amendment, the General Assembly determined that . . . in order to
maintain an action against a health care provider, a plaintiff is required to file a Certificate
and an attesting expert’s report in addition to filing a complaint.”); Walzer, 395 Md. at 577,
911 A.2d at 435 (“[T]he statutory language is clear and evidences the Legislature’s intent to
19
The Petitioner summarizes accurately the common law procedure for prevailing in
a medical malpractice action prior to the 1986 amendment:
[T]o prevail in a medical malpractice action a plaintiff must
prove that a physician breached the standard of care in rendering
treatment to that plaintiff and caused him injury. “A prima facie
case of medical negligence must establish (1) the applicable
standard of care, (2) that this standard of care has been violated,
and (3) that this violation caused the harm complained of.” Karl
v. Davis, 100 Md. App. 42, 51, 639 A.2d 214[, 218] (1994),
citing Weimer v. Hetrick, 309 Md. 536, 553, 525 A.2d 643[,
651] (1987). The plaintiff must present expert testimony to
establish the standard of care and to prove that the defendant
breached that standard. Crockett v. Crothers, 264 Md. 222, 22425, 285 A.2d 612[, 614] (1972). For an expert’s opinion to be
considered, the expert must be qualified to render the opinion.
. . [and] the opinion must have a sound basis in both fact and in
science.
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change the common law.”). The purpose of this departure from the common law has been
stated several times by our appellate courts as reflecting the General Assembly’s desire to
“weed out” non-meritorious medical malpractice claims. See Carroll, 400 Md. at 207, 929
A.2d at 43 (“The purpose of the statute is to weed out non-meritorious claims.”); Walzer, 395
Md. at 582, 911 A.2d at 438 (“[T]he General Assembly enacted the [HCMCA] for purposes
of weeding out non-meritorious claims and to reduce the costs of litigation.”); Debbas v.
Nelson, 389 Md. at 378, 885 A.2d at 811 (“[T]he requirement of [the Certificate] . . . was
intended to eliminate excessive damages and reduce the frequency of claims, and . . . has
been considered as serving a gatekeeping function.”). Further, in the final report of the
Governor’s 2004 Task Force on Medical Malpractice and Health Care Access stated in its
recommendations that:
This certificate requirement ensures that a health care
provider who is not a party has reviewed the claim. It helps
ensure that completely spurious claims do not go forward. It
also provides a mechanism for the Board of Physicians to
receive notice of a claim.
TASK FORCE REPORT, supra, at 31.
C. The Third Crisis: Early 2000s
The third medical malpractice insurance “crisis” followed a near twenty-year period
of relative stability. Throughout the late 1980s and continuing into the 1990s, the medical
malpractice insurance market remained fairly stable. See TASK FORCE REPORT, supra, at 7.
The most relevant change to the HCMCA during this period came during the 1995 legislative
session when the General Assembly enacted a bill permitting waiver by either party of the
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entire arbitration process. See Ch. 582 of the Acts of 1995, codified as Md. Code (1974,
2002 Repl. Vol.), CJ § 3-2A-06B; see also Debbas, 389 Md. at 380-81, 885 A.2d at 812.
This relative stability in the market led to “fiercely competitive pricing on premiums,” and
“[p]rofitability was made possible by slow claims growth coupled with favorable economic
conditions.” TASK FORCE REPORT, supra, at 7. In 1999, however, medial malpractice
premium rates increased dramatically throughout the country. See id. Maryland physicians
and hospitals felt the effects of these increases in premiums in the early 2000s, with only four
insurers providing malpractice insurance to the entirety of the State’s physicians and
hospitals, after ten insurers abandoned the State beginning in 1995. See TASK FORCE
REPORT, supra, at 7-8.
In 2004, the General Assembly called a special legislative session to address the latest
medical malpractice insurance crisis and enacted several changes to the HCMCA. Most
relevant to the present case, the 2004 amendments added qualifications for the expert
attesting in the Certificate or testifying before the arbitration panel or court regarding the
compliance with, or departure from, the standard of care by the defendant. The amended CJ
§ 3-2A-02 (c)(2)(ii) states:
1. In addition to any other qualifications, a health care
provider who attests in a certificate of a qualified expert or
testifies in relation to a proceeding before a panel or court
concerning a defendant’s compliance with or departure from
standards of care:
A. Shall have had clinical experience, provided
consultation relating to clinical practice, or taught medicine in
the defendant’s specialty or a related filed of health care, or in
the field of health care in which the defendant provided care or
-20-
treatment to the plaintiff, within 5 years of the date of the
alleged act or omission giving rise to the cause of action . . . .
The legislative history illuminating the purpose of this amendment is scant. In his letter
vetoing the proposed House Bill 2 of 2004, which was adopted over the veto, then-Governor
Robert L. Ehrlich, Jr. stated that the provisions dealing with expert witnesses were intended
to “prevent the prevalent use of ‘hired gun’ experts who do not practice medicine but instead
have become experts for hire.” Letter from Robert L. Ehrlich, Jr., Governor, to Michael
Busch, Speaker of the House of Delegates, at 8 (10 Jan. 2005).
With this “family” history of the HCMCA in mind, we turn to the present case.
II. Statutory Construction
When undertaking an exercise in statutory interpretation, as in the present case, the
goal is to “ascertain and effectuate the intent of the Legislature.” Mayor of Oakland v.
Mayor of Mountain Lake Park, 392 Md. 301, 316, 896 A.2d 1036, 1045 (2006). In
attempting to discern the intent of the Legislature, courts “look first to the plain language of
the statute, giving it its natural and ordinary meaning.” State Dep’t of Assessments and
Taxation v. Maryland-Nat’l Capital Park & Planning Comm’n, 348 Md. 2, 13, 702 A.2d
690, 696 (1997). If the language of the statute is clear and unambiguous, courts will give
effect to the plain meaning of the statute and no further sleuthing of statutory interpretation
is needed. See Marriott Employees Fed. Credit Union v. MVA, 346 Md. 437, 445, 697 A.2d
455, 458 (1997) (“When the statutory language is clear, we need not look beyond the
statutory language.”); Kaczorowski v. Mayor of Baltimore, 309 Md. 505, 515, 525 A.2d 628,
-21-
633 (1987) (“Sometimes the language in question will be so clearly consistent with apparent
purpose . . . that further research will be unnecessary.”). If the sense of the statute is either
unclear or ambiguous under the plain meaning magnifying glass, courts will look for other
clues – e.g., the construction of the statute, the relation of the statute to other laws in a
legislative scheme, the legislative history, and the general purpose and intent of the statute.
See Lewis v. State, 348 Md. 648, 653, 705 A.2d 1128, 1131 (1998) (“If . . . the meaning of
the plain language is ambiguous or unclear, we seek to discern legislative intent from
surrounding circumstances, such as legislative history, prior case law, and the purposes on
which the statutory framework was based.”).
It is well-settled that a court must read a statute in the context of its statutory scheme,
ensuring that “no word, clause, sentence, or phrase is rendered surplusage, superfluous,
meaningless, or nugatory,” and that any illogical or unreasonable interpretation is avoided.
Mayor of Oakland, 392 Md. at 316, 896 A.2d at 1045; see also Whiting-Turner Contracting
Co. v. Fitzpatrick, 366 Md. 295, 302-03, 783 A.2d 667, 671 (2001) (“[S]tatutes on the same
subject are to be read together and harmonized to the extent possible, reading them so as to
avoid rendering either of them, or any portion, meaningless, surplusage, superfluous or
nugatory.” (quotation marks and citations omitted)). Additionally, “‘[s]tatutes in derogation
of the common law are strictly construed, and it is not to be presumed that the [L]egislature
by creating statutory assaults intended to make any alteration in the common law other than
what has been specified and plainly pronounced.’” Walzer, 395 Md. at 573-74, 911 A.2d at
433 (quoting Gleaton v. State, 235 Md. 271, 277, 201 A.2d 353, 356 (1964)). With this in
-22-
mind, courts may consider with caution the cannon of construction, expressio unius est
exclusio alterius, meaning “to express or include one thing implies the exclusion of the other,
or of the alternative,” BLACK’S LAW DICTIONARY 661 (9th ed. 2009). See Kirkwood v.
Provident Sav. Bank of Baltimore, 205 Md. 48, 55, 106 A.2d 103, 107 (1954) (“[This maxim]
should be used with caution, and should never be applied to override the manifest intention
of the Legislature or a provision of the Constitution.”). That that narrow interpretation is
applicable to statutes purporting to repeal the common law does not mean that a court will
refuse to give effect to a statute abrogating the common law that was intended clearly by the
Legislature. See Witte, 369 Md. at 533, 801 A.2d at 169 (“Most statutes . . . change the
common law, so that principle necessarily bends when there is a clear legislative intent to
make a change.”).
Section 3-2A-04(b)(1)(i) provides:
[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 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.
Later provisions of CJ § 3-2A-04(b) provide requirements for the Certificate and the
“qualified expert” attesting to the Certificate:
(4) A health care provider who attests in a certificate of a
qualified expert or who testifies in relation to a proceeding
before an arbitration panel or a court concerning compliance
with or departure from standards of care may not devote
annually more than 20 percent of the expert’s professional
activities to activities that directly involve testimony in personal
-23-
injury claims.
***
(7) For purposes of the certification requirements of this
subsection for any claim or action filed on or after July 1, 1989:
(i) A party may not serve as a party’s expert; and
(ii) The certificate may not be signed by:
1. A party;
2. An employee or partner of a party; or
3. An employee or stockholder of any
professional corporation of which the party is a
stockholder.
As noted above, CJ § 3-2A-04(b)(1)(i) requires that a claimant or plaintiff with a medical
malpractice case file a certificate from a qualified expert; the sanction for failing to file a
certificate of a qualified expert is dismissal without prejudice of the “claim or action.” This
provision was added to the HCMCA in 1986. In 2004, the Legislature added additional
qualifications for the attesting expert in CJ § 3-2A-02 with the knowledge that the section
added in 1986 already required dismissal without prejudice for failure to file a proper
Certificate. See Bd. of Educ. of Garrett County v. Lendo, 295 Md. 55, 63, 453 A.2d 1185,
1189 (1982) (“The General Assembly is presumed to have had, and acted with respect to, full
knowledge and information as to prior and existing law and legislation on the subject of the
statute and the policy of the prior law.”).
The additional qualifications for the Certificate added in 2004 are found in CJ § 3-2A02(c)(2)(ii), which provides that:
1. In addition to any other qualifications, a health care
provider who attests in a certificate of a qualified expert or
testifies in relation to a proceeding before a panel or court
concerning a defendant’s compliance with or departure from
standards of care:
-24-
A. Shall have had clinical experience, provided
consultation relating to clinical practice, or taught medicine in
the defendant’s specialty or a related field of health care, or in
the field of heath care in which the defendant provided care or
treatment to the plaintiff, within 5 years of the date of the
alleged act or omission giving rise to the cause of action . . . .
(Emphasis added.) The use of the words “in addition to any other qualifications” in CJ § 32A-02(c)(2)(ii) shows clearly and unambiguously that the Legislature intended the
qualifications in CJ § 3-2A-02 and CJ § 3-2A-04 to be read together. The various
qualifications for attesting experts, in both CJ §3-2A-02 and CJ § 3-2A-04, are all necessary
in order to have a proper Certificate. Therefore, because the two provisions act in tandem,
filing a Certificate of an unqualified expert, in contravention of CJ § 3-2A-02, mandates
dismissal without prejudice of the claim or action, as provided in CJ § 3-2A-04.20
20
Although neither Petitioner nor Respondent argue as such, there hangs in the air the
question whether CJ § 3-2A-04 is meant to apply only to a defect identified and raised while
a claim is still before the arbitration panel and not yet an action before a court. The title of
the section – “Filing a claim; appointment of arbitrators” – and some of the text, which
appears to deal only with claims before the arbitration panel, raise the question sua sponte.
Other language of the statute, in conjunction with several recent cases, however, suggests
that this section is meant to apply to triggering events arising with claims before the
arbitration panel as well as actions in the courts.
Section 3-2A-04(b)(1)(i) reads:
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 attesting to departure from
standards of care . . . .
(Emphasis added.) The section later states, in subsection (b)(1)(ii), that “[i]n lieu of
dismissing the claim or action, the panel chairman or the court shall grant an extension,” if
(continued...)
-25-
Dr. Breslin alleges that the plain language of the HCMCA allows for the grant of
summary judgment when an unqualified expert is exposed (after a claim reaches the courts)
because CJ § 3-2A-04(b)(2) and CJ § 3-2A-02(d) both refer to the “liability” of the
defendant, which, according to Dr. Breslin, “clearly implies summary judgment,” while CJ
§ 3-2A-04(b)(1) makes no mention of liability and mandates dismissal only when no
certificate is filed at all.21 Section 3-2A-04(b)(1)(i) states that a claim “shall be dismissed,
20
(...continued)
certain conditions are met. (Emphasis added.) The parallel use of terms such as “claimant
or plaintiff,” “claim or action,” and “panel chairman or the court” throughout CJ § 3-2A-04
implies that the General Assembly intended this section to address triggering events that
come to light in either fora.
Although many of the earlier cases considering the relevant statutory scheme involved
issues that arose out of determinations by the arbitration panel, several recent cases, such as
Kearney v. Berger, 416 Md. 628, 634-35, 7 A.3d 593, 596 (2010), Carroll v. Konits, 400 Md.
167, 175-76, 929 A.2d 19, 24 (2007), and Walzer v. Osborne, 395 Md. 563, 569, 911 A.2d
427, 430 (2006), have dealt with issues that occurred after the claim was waived into circuit
court. All of these more recent cases involved deficient Certificates and the result of each
was dismissal without prejudice. These cases were decided in this manner because the
Certificate is an “indispensable” step in the arbitration process such that arbitration cannot
occur without the filing of a proper certificate. See Carroll, 400 Md. at 181, 929 A.2d at 28.
Because a claim cannot be in circuit court without meeting all of the requirements for
arbitration laid out in CJ § 3-2A-04, including filing a Certificate, filing of a proper
certificate is a condition precedent to filing an action in circuit court (or federal district
court). See id. (“[I]f a proper Certificate has not been filed, the condition precedent to
maintain the action has not been met and dismissal is required by the statute once the allotted
time has passed.”). Therefore, if a proper Certificate has not been filed, the case should not
have been in a court in the first place and should be dismissed without prejudice in
accordance with the HCMCA.
21
Dr. Breslin states baldly in his brief, “[u]se of the word liability clearly implies
summary judgment.” This leap, however, is made without any support from the statutory
language, legislative history, or caselaw relevant to these provisions. He states that CJ § 32A-04(b)(1) refers only to dismissal without prejudice when no certificate is filed and does
not reference liability, while CJ §§ 3-2A-04(b)(2) and 3-2A-02(c) both refer to liability. This
(continued...)
-26-
without prejudice, if the claimant or plaintiff fails to file a certificate of qualified expert with
the Director . . . .” (Emphasis added.) Dr. Breslin posits that the only way possible by which
a claimant or plaintiff could “fail to file” a certificate is if the claimant or plaintiff does not
21
(...continued)
interpretation ignores the fact that dismissal without prejudice does not deem the defendant
“liable.” Dismissal without prejudice is a “[t]ermination of an action or claim without further
hearing,” which “does not bar the plaintiff from refiling the lawsuit within the applicable
limitations period.” BLACK’S LAW DICTIONARY 537 (9th ed. 2009).
Furthermore, Dr. Breslin supports his argument that summary judgment is required
by noting that CJ § 3-2A-02(d) incorporates the Maryland Rules, which gives the court
access to every remedy available under those Rules. See Md. Rule 2-501 (summary
judgment). As to the statute providing expressly that the Maryland Rules of Procedure apply
to issues arising under the HCMCA, the Senate Judicial Committee Report stated that the
intent was “to codify the existing practice regarding the applicability of the Maryland Rules
to arbitration proceedings.” Committee Report on S.B. 559, at 2 (1986).
The legislative history is minimal with regard to this provision. Prior interpretations
of this Court have made clear, however, that Dr. Breslin’s statement is not supported by the
purpose of the provision. In Newman v. Reilly, 314 Md. 364, 550 A.2d 959 (1988), we first
faced interpreting this incorporation by reference provision. The Court found that “[b]ecause
§ 3-2A-07(a) more particularly expresses the legislative purpose with respect to sanctions
than does the general reference to the rules of procedure in § 3-2A-02(c), the conflict must
be resolved in favor of the former, more specific statute.” Newman, 314 Md. at 379, 550
A.2d at 966. Later, in Curry v. Hillcrest Clinic, Inc., 337 Md. 412, 416, 653 A.2d 934, 936
(1995), we implied that where the statute provides for a specific remedy or action, the
Maryland Rules do not apply:
Section 3-2A-02(d) of the Act provides that “except as
otherwise provided, the Maryland Rules of Procedure shall
apply to all practice and procedure issues arising under this
subtitle.” The procedure upon default for failure to answer the
complaint is not prescribed in the Act or in the rules adopted by
the HCAO Director under CJ § 3-2A-03(b)(3). Consequently,
Maryland Rule 2-613 governs such defaults.
These cases stand for the proposition that where the HCMCA provides for a specific
procedure, that procedure prevails over the more general procedures provided by the
Maryland Rules.
-27-
file a certificate at all. That is, filing a Certificate signed by an unqualified expert, according
to Dr. Breslin, does not constitute a “failure to file,” and, therefore, CJ § 3-2A-04, requiring
dismissal without prejudice, does not apply and summary judgment becomes a proper
remedy.
This argument, however, found no favor in several reported cases before
Maryland’s appellate courts.
In D’Angelo, the Court of Special Appeals stated that “failure to file a proper
certificate is tantamount to not having filed a certificate at all.” 157 Md. App. at 645, 853
A.2d at 822. We adopted this statement in subsequent cases and agree with its continuing
correctness. See Kearney, 416 Md. 628, 635, 7 A.3d 593, 597 (2010) (quoting favorably the
statement in D’Angelo); Walzer, 395 Md. at 582, 911 A.2d 438 (“While based on somewhat
different facts, we agree with the Court of Special Appeals’ general statement in
D’Angelo.”). We imagine several ways in which a plaintiff could “fail to file a certificate of
a qualified expert,” including but not limited to: (1) not filing a certificate at all; (2) filing a
certificate of an unqualified expert who does not have the requisite training; (3) filing a
certificate of an otherwise qualified expert who devotes more than twenty percent of his
professional activities to testimony in personal injury cases; or (4) filing a certificate of a
qualified expert that does not include the required report. These and other ways in which a
claimant or plaintiff can “fail to file” are not distinguished in the statute. To recognize such
a distinction creates a dichotomy that is not included, either expressly or impliedly, in the
statute. See D’Angelo, 157 Md. App. at 646, 853 A.2d at 822 (dismissing appellant’s
argument that he was not required to name the defendants in the Certificate and explaining
-28-
that “[i]f such an interpretation were sanctioned, the certificate requirement would amount
to a useless formality”). Stated plainly, a claimant or plaintiff who files a Certificate of an
unqualified expert has “failed to file a certificate of a qualified expert.”
Dr. Breslin claims further that CJ § 3-2A-02 makes no reference to the dismissal
without prejudice provision and, therefore, that provision is not controlling. This argument
ignores the plain language of the statute. Section 3-2A-02(c) states “[i]n addition to any
other qualifications” and then delineates a list of qualifications; this implies clearly that the
Legislature intended CJ § 3-2A-02(c) to work together with other provisions in Subtitle 3-2A
that provide additional qualifications for the attesting experts. Moreover, the provision
incorporating the Maryland Rules begins, “[e]xcept as otherwise provided,” which evinces
the Legislature’s intent to allow for other sections of the HCMCA to provide practices and
procedures specific to medical malpractice claims that would supersede general provisions
of the Maryland Rules. See CJ § 3-2A-02(d); see also Curry v. Hillcrest Clinic, Inc., 337
Md. 412, 416, 653 A.2d 934, 936 (1995) (stating that where a “procedure . . . is not
proscribed in the [HCMCA] or in rules adopted by the [HCADRO] Director . . . [the]
Maryland Rule[s] govern[]”). Dr. Breslin focuses on the words “shall apply to all practice
and procedure issues arising under this subtitle,” (emphasis added), ignoring the earlier
qualifying language, “[e]xcept as otherwise provided.” As the statute provides for a remedy
of dismissal without prejudice when a claimant or plaintiff fails to file a proper certificate in
CJ § 3-2A-04(b)(1), that remedy, and not the Maryland Rules, governs the failure to file a
certificate meeting the requirements of CJ §3-2A-02(c).
-29-
Throughout his analysis, Dr. Breslin relies heavily on the maxim expressio unius est
exclusio alterius as his default position. The Circuit Court also relied on this maxim in its
grant of summary judgment, stating that CJ § 3-2A-02 allows for summary judgment as it
does not refer specifically to whether dismissal should be with or without prejudice.
Because, according to the Circuit Court and Dr. Breslin, CJ § 3-2A-04 refers to dismissal
without prejudice and CJ § 3-2A-02 does not, expressio unius est exclusio alterius implies
that dismissal with prejudice, cloaked as summary judgment, is an appropriate remedy. We
cautioned, however, that this particular canon of construction should be applied with extreme
caution, as
[it] is not a rule of law, but merely an auxiliary rule of statutory
construction applied to assist in determining the intention of the
Legislature where such intention is not manifest from the
language used. It should be used with caution, and should never
be applied to override the manifest intention of the Legislature
or a provision of the Constitution . . . .
Walzer, 395 Md. at 579, 911 A.2d at 436 (quoting Hylton v. Mayor of Baltimore, 268 Md.
266, 282, 300 A.2d 656, 664 (1972)). Where the plain meaning of the statute is clear, as we
believe the provisions relevant to the present case are, the maxim is of no weight. See
Walzer, 395 Md. at 579, 911 A.2d at 436.
III. Legislative Intent
In rendering the plain meaning of a statute, the legislative intent may be considered.
See State v. Pagano, 341 Md. 129, 133, 669 A.2d 1339, 1341 (1996) (“We may always
consider evidence of legislative intent beyond the plain language of the statute.”). The
purpose of the HCMCA supports dismissal without prejudice as the proper remedy for failure
-30-
to file a proper Certificate. The HCMCA was created “in response to the explosive growth
in medical malpractice claims and the resulting effect on health care providers’ ability to
obtain malpractice insurance.” McCready Mem’l Hosp. v. Hauser, 330 Md. 497, 500, 624
A.2d 1249, 1251 (1992). As a response to such a “crisis,” discussed supra, the purpose of
the arbitration process, at its inception, was to screen claims prior to reaching courts, in hopes
that this would decrease litigation costs. See Carroll, 400 Md. at 178, 929 A.2d at 26 (“[T]he
existing legislative history [makes clear] that the General Assembly intended the original
[HCMCA] to screen – and to first substitute the arbitration process as to malpractice claims
– prior to the filing of lawsuits.”).22
22
We held previously that “[a] claimant’s filing an expert certificate is an
indispensable step in the [HCADRO] arbitration process.” McCready Mem’l Hosp. v.
Hauser, 330 Md. 497, 512, 624 A.2d 1249, 1257 (1992). When an incomplete or insufficient
Certificate is filed, the condition precedent to maintain the claim has not been met and,
therefore, dismissal without prejudice is required by the statute once the allotted time period
lapses. See Carroll, 400 Md. at 181, 929 A.2d at 28; see also Kearney, 416 Md. at 653, 7
A.3d at 607.
Carroll states, “if a proper Certificate has not been filed, the condition precedent has
not been met and dismissal is required by the Statute once the allotted time period has
elapsed,” but does not state expressly that dismissal is with or without prejudice. Carroll,
400 Md. at 181, 929 A.2d at 28. Powell explains properly in his brief why the conclusion
that dismissal without prejudice is the proper remedy:
In observing that dismissal is required “by the Statute” where a
proper certificate has not been filed, this Court [in Carroll]
could only have been referring to § 3-2A-04(b), which is the
only statutory provision governing dismissals for failure to file
a conforming certificate.
This explanation applies equally to the other cases, such as Kearney, where the court failed
to distinguish between dismissal with or without prejudice and stated simply that “dismissal
is required” pursuant to the HCMCA. See e.g., Kearney, 416 Md. at 653, 7 A.3d at 607.
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As stated by the Maryland Association for Justice, which filed an Amicus Curiae brief
in the present case, another purpose of the HCMCA is to balance “the preservation of rights
of those injured through malpractice with the rights of those alleged to have committed the
malpractice.” By dismissing a claim or action without prejudice where the claimant or
plaintiff fails to meet the requirements regarding the Certificate listed in the HCMCA, either
in CJ § 3-2A-02 or CJ § 3-2A-04, the court is balancing these rights by weeding out nonmeritorious claims while still allowing the plaintiff, if he or she can, to re-file a claim or
action with a proper certificate. Dr. Breslin is correct in stating that a claimant or plaintiff
has an affirmative duty to choose a proper expert to attest to the standard of care in the
Certificate; however, he states incorrectly that the result sought here by Powell allows a
claim or action to go forward even if it lacks merit. Dismissing this case without prejudice
would not have allowed the case to go forward with Dr. Burt’s Certificate, but rather would
have given Powell an opportunity to re-file with a proper Certificate. Although Dr. Breslin
claims that this is an unjust result because Powell knew purportedly that Dr. Burt was
unqualified before the filing of the Certificate, Dr. Breslin ignores the multiple plausible
arguments proposed by Powell in the trial court as to why Powell believed originally Dr. Burt
was, in fact, qualified. See, supra, ___ Md. ___, ___ A.3d ___ (slip op. at 4-5).
The requirements added in 2004 to CJ § 3-2A-02(c) emphasize further the importance
of a proper Certificate and the Legislature’s intent to screen claims, if possible, before they
are filed in court. Ch. 5 of the Acts of 2004, 1st Sp. Sess. (stating that the amendment was
“[f]or the purpose of requiring that a health care provider who attests in certain certificates
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or testifies in relation to certain proceedings concerning health care malpractice meet certain
qualifications”). As Dr. Breslin states properly, a claimant who retains an unqualified expert
does so at his or her peril23 – the case would be dismissed without prejudice. Dr. Breslin,
however, states incorrectly that the Legislature intended to provide a stronger remedy for
filing a Certificate attested to by an unqualified expert than for failing to file at all.24 There
23
Parties to a claim before the HCADRO must make a good faith efforts prior to
waiving the claim to court pursuant to CJ § 3-2A-06. See Karl v. Davis, 100 Md. App. at 5051, 639 A.2d at 218 (“To allow less than a legitimate good faith attempt before the
[HCADRO] to satisfy the mandatory condition precedent would clearly thwart the
[L]egislative intent.”). According to Dr. Breslin, Dr. Burt did not meet any of the
requirements of the statute and the use of him as an attesting expert was an attempt to thwart
the objectives of the Legislature and amounts to failure to arbitrate in good faith. Powell,
however, in the trial court, provided several plausible explanations for the use of Dr. Burt as
the attesting physician in the Certificate. See, supra, ___ Md. ___, ___ A.3d ___ (slip op.
at 5-6). Furthermore, the court in Manzano v. Southern Maryland Hospital, Inc., 347 Md.
17, 30-31, 698 A.2d 531, 537 (1997) stated that “[i]n order to dismiss an action for failure
to arbitrate in good faith, a circuit court must find that a party exhibited deliberate or willful
behavior with the effect of circumventing the Act’s mandatory arbitration requirement.”
Although there is no evidence in the record to support Dr. Breslin’s argument, the result
would be the same – the case would be dismissed without prejudice.
24
As explained supra, Dr. Breslin maintains that the Certificate filed by Powell was
valid on its face and dismissal without prejudice is the remedy only for a Certificate that is
invalid on its face and not when the Certificate is flawed substantively. We agree with the
Court of Special Appeals statement that:
There is no express requirement that the expert’s qualifications
be stated in the certificate. However, discovery is available so
that an opposing party may ascertain the legitimacy of the
certificate, and the qualifications of the attestor.
***
The plain language of CJ § 3-2A-04(b)(3)(ii) provides
that “[d]iscovery is available as to the basis of the [Certificate].”
This language clearly contemplates that consideration of
evidence outside of the pleadings may be necessary to assess the
(continued...)
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is simply no indication – in the statutory language, legislative history, or otherwise – that the
Legislature intended such a distinction.
Because the Certificate is vital, an action in circuit court (or federal court) will be
24
(...continued)
sufficiency of a certificate.
Powell, 195 Md. App at 355, 357, 6 A.3d at 368, 370 (citations omitted).
Dr. Breslin looks to Debbas v. Nelson, 389 Md. 364, 885 A.2d 802 (2005) to support
his proposition that discovery is not allowed to invalidate an otherwise valid Certificate, and
allowing for such would be inconsistent with the plain language of the statute. The facts of
Debbas, however, are distinguishable from the present case. The Certificate filed by the
plaintiff in Debbas was valid facially and substantively, and later, at a deposition, the defense
discovered that the expert attesting to the standard of care in the Certificate did not intend to
testify at trial regarding the standard of care of any of the defendants. See Debbas, 389 Md.
at 368-69, 885 A.2d at 805-06. This Court held that discovery did not invalidate the
Certificate because the revelations arose subsequent to filing of the Certificate. See Debbas,
389 Md. at 371, 885 A.2d 807. In the present case, however, the invalidating circumstances
– that Dr. Burt is an unqualified expert in the field of vascular surgery – existed at the time
of filing.
Furthermore, Dr. Breslin’s argument ignores two cases distinguished by the Court in
Debbas – Witte, and D’Angelo v. St. Agnes Healthcare, Inc., 157 Md. App. 631, 853 A.2d
813 (2004) – both of which are more similar factually to the present case and allowed
discovery revelations to invalidate “facially valid” certificates. In Witte, the defendant
challenged a Certificate based on deposition testimony that showed the attesting expert did
not meet the twenty percent rule. See Witte, 369 Md. at 523, 801 A.2d at 163. In D’Angelo,
the plaintiff filed Certificates that did not name individually the defendant physicians but
instead stated that “I have concluded that the foregoing medical providers failed to comply
with the standards of care and that such failure was the proximate cause of the injuries to
Claimant, Vincent D’Angelo.” See D’Angelo, 157 Md. App. at 637, 853 A.2d at 817. In
both of these cases, a challenge to the Certificate was allowed, pursuant to CJ § 3-2A04(b)(3)(ii), “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.” Debbas,
389 Md. at 384, 885 A.2d at 814. Because the issue in the present case is one regarding the
statutory prerequisites of the Certificate and circumstances in existence at the time the
Certificate was filed (i.e, that Dr. Burt was an anesthesiologist attesting to the standard of
care of a vascular surgeon), Dr. Breslin’s arrow falls short of the mark.
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dismissed without prejudice if any of the Certificate’s material requirements are not met.25
In fact, Dr. Breslin conceded this point in the Circuit Court when he urged the trial judge not
to reconsider her initial ruling, stating that “[t]he proper remedy for the filing of an
incomplete or deficient certificate is dismissal without prejudice.”
Dismissing Powell’s claim without prejudice does not undermine the legislative intent
behind requiring a Certificate and stringent requirements for the attesting expert. Instead,
such an outcome supports the legislative purpose by not allowing a claim or action to go
forward with an unqualified expert, and, therefore, an insufficient Certificate. Further,
dismissing the case without prejudice allows for protection of a plaintiff’s rights in a medical
malpractice case by providing the opportunity to re-file (assuming the limitations period has
not expired) if a qualified expert can attest in a Certificate to departures from the standard of
care and causation between such departure and the injury.
Section 3-2A-02(c) and 3-2A-04(b) both provide qualifications for the expert attesting
to the Certificate; therefore, the two must be read together, which compels the conclusion that
25
See e.g., Kearney, 416 Md. at 668-69, 7 A.3d at 616-17 (holding that dismissal
without prejudice is required when a plaintiff fails to meet the requirement of attaching a
proper expert report to the Certificate); Walzer, 395 Md. at 585, 911 A.2d at 440 (holding
that dismissal without prejudice was the appropriate remedy for failure to attach the expert
report to the Certificate); Carroll, 400 Md. at 201, 929 A.2d at 39-40 (holding that de facto
dismissal without prejudice was appropriate where a plaintiff’s certificate failed to state with
specificity that a defendant was the proximate cause of the plaintiff’s injury); Oxtoby v.
McGowan, 294 Md. 83, 91, 447 A.2d 860, 865 (1982) (“So strong is the public policy that
this Court will, sua sponte, vacate judgment and order an action dismissed where the litigants
have not followed the special statutory procedure.”); D’Angelo, 157 Md. App. at 652; 853
A.2d at 826 (holding that dismissal without prejudice was appropriate where a plaintiff failed
to name each of the persons alleged to have violated the appropriate standard of care).
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any deficiency in the Certificate requires the arbitration panel or court to dismiss the claim or
action without prejudice.26
JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED;
COSTS IN THIS COURT AND THE
COURT OF SPECIAL APPEALS TO
BE PAID BY PETITIONER.
26
Powell presents an argument in his brief that, if Dr. Breslin’s construction of CJ §
3-2A-02(c)(2)(ii) is correct, then the statute is unconstitutionally vague. In attempting to
“ascertain and effectuate the intention of the [L]egislature,” it is the policy of this Court to
avoid, where possible, reaching a constitutional question. See Bank of Am. v. Stine, 379 Md.
76, 85-86, 839 A.2d 727, 732-33 (2003); see also Auto. Trade Ass’n of Md., Inc. v. Ins.
Comm’r, 292 Md. 15, 21, 437 A.2d 199, 202 (1981) (“It is elementary that appellate courts
do not decide issues of constitutionality except as a last resort.”). Because we reach the
conclusion that Dr. Breslin’s construction is incorrect, we will not address Powell’s argument
regarding the constitutionality of Dr. Breslin’s construction.
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