Whitfield et al v. Southern Maryland Hospital, Inc. et al, No. 8:2012cv02749 - Document 35 (D. Md. 2013)
Court Description: MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 4/18/13. (sat, Chambers)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : HOLLEY F. WHITFIELD, et al. : v. : Civil Action No. DKC 12-2749 : SOUTHERN MARYLAND HOSPITAL, INC., et al. : MEMORANDUM OPINION Presently pending and ready for review in this medical malpractice case is the motion for summary judgment filed by Plaintiffs Holley and Michael Whitfield against Defendants Gastrointestinal Associates of Maryland, P.A. ( GAM ) and Dr. Lornette Mills. briefed, and necessary. (ECF No. 17). the court now The issues have been fully rules, Local Rule 105.6. no hearing being deemed For the following reasons, the motion for summary judgment will be denied. I. Background The sole issue presented in this early motion for summary judgment is whether Plaintiffs are entitled to summary judgment as to the liability of two of the defendants, GAM and Dr. Lornette Mills, based on their alleged failure to file required certificates of qualified experts and attesting reports in a timely fashion. September 28, The history of the case is as follows: 2008, Plaintiff Holley Whitfield went to On the emergency department at Southern Maryland Hospital, complaining of abdominal pain and vomiting blood. After undergoing a series of tests and treatments over a number of days, Ms. Whitfield was transferred to the Medical College of Virginia, where she was ultimately treated for acute mesenteric ischemia, a malady not diagnosed at Southern Maryland Hospital. Defendants, including GAM and Dr. Plaintiffs allege that Mills, provided inadequate care and treatment to Plaintiff Holley Whitfield from September 29, to October 3, 2008. The Maryland Health Care Malpractice Claims Act (the Malpractice Claims Act ), Md. Code Ann. Cts. & Jud. Proc. §§ 32A-01 et seq., governs the procedures for medical malpractice claims in the state of Maryland. 400 Md. 167, 172 (2007). See, e.g., Carroll v. Kontis, On September 26, 2011, Plaintiffs filed a Statement of Claim in the Healthcare Alternative Dispute Resolution Office ( HCADRO ). The HCADRO is an administrative body established by the Malpractice Claims Act. The Malpractice Claims Act requires a plaintiff to file an expert report and certificate with the HCADRO. certificate care, and are that to outline the the departure departure from for extensions of time, 2 of standards care is of the Md. Code Ann. Cts. & Jud. Proc. § 3-2A-04(b)(1)(i)(1), (b)(3)(i). requests from standards proximate cause of the alleged injury. This report and After filing two Plaintiffs filed two certificates and reports of qualified experts on June 8, 2012. The certificate of service included with the filing of these certificates and reports notes the date and method of service as via U.S. Mail & Email on June 8, 2012. (ECF No. 24-4). day before, Plaintiffs counsel handed copies of The these certificates and reports to counsel for Dr. Mills and GAM while at a deposition of one of the parties. If liability is disputed, the Malpractice Claims Act requires that a defendant file, within 120 days of service of the plaintiff s certificate and report, a similar expert certificate and report attesting to compliance with standards of care, or that the departure from standards of care is not the proximate cause of the alleged injury. Jud. Proc. § 3-2A-04(b)(2)(i). Md. Code Ann. Cts. & A claim may be adjudicated in favor of the claimant or plaintiff on the issue of liability, if the defendant disputes liability and fails to file a certificate of a qualified expert inside of the 120 day window. Id. (emphasis added). Between the filing of the plaintiff s expert certificate and report, and sixty days after all parties have filed expert certificates and reports, any party can waive arbitration, which terminates proceedings in the HCADRO. to (d)(1). See id. at § 3-2A-06B(a) The Malpractice Claims Act notes that suit may then 3 be filed in either Maryland circuit court or the U.S. District Court. Id. at §§ 3-2A-06A(c), 06B(f). On July 13, 2012, Plaintiffs requested from the HCADRO a panel of Defendants potential filed Malpractice an Claims arbitrators, and election waive Act. On transfer to this court. September 14, 2012. to July on 24, 2012 all arbitration under the 27, July 2012, HCADRO ordered Plaintiffs filed their complaint on (ECF No. 1). Defendants Mills and GAM filed their certificates and reports on October 9, 2012. On October 10, 2012, a scheduling order was entered. (ECF No. 15). Among other things, this order set the deadline for Defendants Rule 26(a)(2) disclosures at January 8, 2013. (Id.). On October 16, 2012, Plaintiffs filed a motion for summary judgment against GAM and Dr. Mills, (ECF No. 17), which these Defendants opposed on October November 13. II. 31 (ECF No. 24). Plaintiffs replied on (ECF No. 25). Standard of Review Summary judgment may be entered only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). Summary judgment is inappropriate if any material factual issue may reasonably be resolved in favor of either party. 4 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); JKC Holding Co. LLC v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). A party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of [his] pleadings, but rather must set forth specific showing that there is a genuine issue for trial. facts Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting former Fed.R.Civ.P. 56(e)). proof . . . will not suffice to prevent A mere scintilla of summary Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003). judgment. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. 249 50 (citations omitted). Liberty Lobby, 477 U.S. at At the same time, the facts that are presented must be construed in the light most favorable to the party opposing the motion. Scott v. Harris, 550 U.S. 372, 378 (2007); Emmett, 532 F.3d at 297. III. Analysis Plaintiffs claim that by personally handing copies of their expert certificates and reports to Defendants counsel at the June 7, 2012 deposition, they served Defendants pursuant to Md. Rule 1-321, which provides [s]ervice upon the attorney or upon a party shall be made by delivery of a copy . . . Delivery of a copy within this Rule means: to the party. handing it to the attorney or Accordingly, they argue that the clock began to 5 run on June 7, and that Defendants expert report was due 120 days later, October 5. certificate and Defendants argue that they were not officially served with the certificates until they were filed, on June 8. Furthermore, they argue that the filing notes that service was effected via U.S. Mail & Email on June 8, 2012, not by hand on June 7. Accordingly, they argue that the 120 day clock did not begin to run until June 8, and that their report was therefore not due until October 6, which was a Saturday and the following Monday was Columbus Day, making their certificate and report due to be filed by Tuesday, October 9, 2012, they day they ultimately filed it. argue that this timing framework does Alternately, they not govern expert disclosures. There are several reasons why Plaintiffs argument fails. First, once the case is in federal court, federal rules apply. See Cannon v. Kroger Co., 837 F.2d 660, 664 n. 8 (4th Cir. 1988) (noting that the Federal procedure after removal ) Plaintiffs certified that Rules of Civil (citations they served Procedure omitted). the govern Second, certificates and reports on June 8, and cannot now be heard to contend that their earlier informal supplying of an additional copy was the triggering event, for purposes of the Malpractice Claims Act. Finally, even under the Maryland law, the failure of a defendant 6 to file a timely certificate does not compel the finding of liability, particularly absent prejudice to Plaintiffs. A. The Federal Rules of Civil Procedure Apply. When Plaintiffs filed their complaint in federal court, the Federal Rules of Civil Procedure began governing all procedural matters in the case. As Judge Hollander noted: Because either party may waive arbitration once the claimant s expert certificate and report have been filed, it follows that arbitration may be waived and a judicial proceeding may be initiated before a defendant has filed an expert certificate and report. In that event, the Malpractice Claims Act requires the defendant to file an expert certificate and report in the judicial proceeding. See C.J. § 3 2A 06B(b)(3) and (c)(3). However, in Willever v. United States, 775 F.Supp.2d 771, 778 86 (D.Md. 2011), Judge Roger W. Titus held that, if arbitration is waived before a defendant s expert certificate and report are filed, and the medical malpractice suit is subsequently conducted in federal court, the statutory provision requiring the defendant to file an expert certificate and report is supplanted by the expert disclosure provisions of Fed.R.Civ.P. 26(a)(2). He reasoned that, when a state law conflicts with a Federal Rule of Civil Procedure, the federal courts [ordinarily] must apply the Federal Rule. Willever, 775 F.Supp.2d at 779 (citing, inter alia, Hanna v. Plumer, 380 U.S. 460, (1965)). Wilson v. United States, No. ELH-11-1205, 2012 WL 1555442, at *11 (D.Md. Because April this complaint was case 30, is filed 2012). That proceeding before in is situation federal Defendants 7 the filed court their here. and the expert certificate and report, expert disclosure is governed by the Federal Rules of Civil Procedure. The Malpractice Claims Act no longer governs the timing of the filing. The scheduling order set the deadline for Defendant s Rule 26(a)(2) disclosures at January 8, 2013, and they met this deadline. Plaintiffs argue that the Wilson and Willever cases do not apply because they were brought under the Federal Tort Claims Act, and this jurisdiction. case is here on the basis of diversity That is a distinction without a difference. When a case is before this court on diversity grounds, Erie Railroad Company v. Tompkins, 304 U.S. 64, 78 (1938), requires application of state substantive law, but not procedure. v. Plumer, 380 U.S. 460, 465 (1965). and the Hanna As noted in both Wilson Willever, the filing of certificates by defendants is a procedural matter and governed by the Federal Rules of Civil Procedure. B. Service was on June 8. Assuming, applied, it arguendo, requires that the Plaintiffs to Malpractice file the Claims certificate Act and serve a copy of the certificate on all other parties to the claim or action or their attorneys of record in accordance with the Maryland Rules. Md. Rule 1-323 provides: The clerk shall not accept for filing any pleading or other paper requiring service, other than an original pleading, unless it 8 is accompanied by an admission or waiver of service or a signed certificate showing the date and manner of making service. A certificate of service is prima facie proof of service. Here, Plaintiffs certified to the HCADRO that service was made June 8 by U.S. mail and email and not by hand on June 7. Their argument that the certificate of service applied only to the Line is disingenuous as the certificate of service recites that counsel caused a true and exact copy of the foregoing [Line] with the accompanying Certificates of Merit, Attesting Reports, and curriculum vitaes of the experts. Thus, service was effected by U.S. mail and email on June 8 and if the Malpractice Claims Act applied, the time for Defendants to file an expert report and certificate would not have expired until October 9.1 C. A finding of Liability is not Required. Finally, even if the Malpractice Act applied, and even if service was effected on June 7, the Act does not require a finding in Plaintiffs favor. Rather, the claim may be adjudicated in favor of the claimant if the filing is not made within 120 days. 04(b)(2)(i). mandated. Md. Code Ann. Cts. & Jud. Proc. § 3-2A- As Judge Titus held, a finding of liability is not Willever, 775 F.Supp.2d at 778-79 (noting that the 1 Although Defendants do not rely on Fed.R.Civ.P. 6(d), service by mail actually adds an additional 3 days to the period within which Defendants may respond. 9 court could exercise discretion by refusing to adjudicate liability in plaintiff s favor where defendant failed to file an expert report as required by the Malpractice Act). Even if Plaintiffs arguments were credited, they have not demonstrated that they were prejudiced by Defendants allegedly late filing, and exercising discretion to find in Plaintiffs favor on the issue of liability would not be merited. IV. Conclusion For the foregoing reasons, the motion for summary judgment filed by Plaintiffs Holley and Michael Whitfield will be denied. A separate Order will follow. /s/ DEBORAH K. CHASANOW United States District Judge 10
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