Navarro-Monzo v. Washington Adventist

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In the Circu it Court for M ontgom ery County Case No. 238381 IN THE COURT OF APPEALS OF MARYLAND No. 69 September Term, 2003 ______________________________________ JULIO J. NAVARR O-MONZO , et ux. v. WASHINGTON ADVENTIST HOSPITAL t/a ADV ENTIS T HEA LTHC ARE , INC., et al. ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Eldridge, Jo hn C. (Re tired, Specially Assigned), JJ. ______________________________________ Opinion by Wilner, J. ______________________________________ Filed: March 11, 2004 The Circuit Court for Mo ntgomery C ounty dismisse d this medical malpractice action because, in that court s view, appellants failed, when the case was pending before the Health Claims Arbitration Office, to file an expert s certificate within the time limit se t forth in Maryland Code, § 3-2A-04(b) of the Courts and Judicial Proceedings Article (CJP). We believe that the court erred and shall therefore reverse. BACKGROUND Title 3, subtitle 2A of CJP creates an arbitration program for the resolution of medical injury claims made against health care providers, in which damages in excess of the concurrent jurisdiction of the District Court (currently $25,000) are sought. CJP, §§ 3-2A02(a) and 3-2A-04 require that all such claims be filed initially with the Health Claim s Arbitration Office (HCAO). Unless the jurisdiction of that office is waived pursuant to § 32A-06A or §3-2A-06B, those claims are submitted to a form of non-binding arbitration, subject to de novo trial in the Circuit C ourt. See §§ 3-2A-05 and 3-2A-06. In 1986, the General Assembly added a new requirement to the program. Section 32A-04(b)(1)(i) requires that the claim be dismissed if the claimant fails to file with the Director of HCAO, within 90 days after the date of the complaint, a certificate of a qualified expert attesting (1) to a departure from th e standard of care by the defendant, and (2) that the departure was the proximate cause of the alleged injury. With amendments added in 1989, however, § 3-2A-0 4(b)(1)(ii) states th at, in lieu of dismissing the claim, the arbitration panel chair shall grant an extension of no more than 90 da ys for filing the required ce rtificate if (1) the limitations period applicable to the claim has expired, and (2) the failure to file the certificate was neith er willful no r the result of gross negligence. If the plaintiff files the certificate and the defendant wishes to dispute liability, the defendant must then file a certificate from a qualified expert attesting either to compliance with the standard of care or that the alleged departure was not the proximate cause of the alleged injury. If the defendant fails to file such a certificate within 120 days after service of the plaintiff s certificate, the claim may be a djudica ted in fa vor of the plain tiff on th e issue o f liability. See §3-2A04(b)(2). Two other statutory provisions the ones principally at issue here provide some relief from th ese time require ments. Section 3-2A-04(b)(5) states that [a]n extension of the time allowed for filing a certificate of a qualified expert under this subsection shall be granted for go od cau se show n. (Em phasis a dded). Section 3-2A-05(j), which is part of the section dealing specifically with arbitration of the claim , provides that [e]xcept for time limitations pertaining to the filing of a claim or response, the [HCAO] Director or the [arbitration] panel chairman, for good cause shown, may lengthen or shorten the time limitations prescribed in subsections (b) and (g) of this section and § 3-2A-04 of this article. (Emphasis add ed). 1 1 Section 3-2A -05( b)(2 ) requires that all d iscovery b e com plete d within 270 days after all defe ndants ha ve been s erved. Sec tion 3-2A -05(g) sets ce rtain time limits w ith respect to the making of an arbitration award and delivery of the award to the HCAO Director. -2- On September 14, 2001, appellants Julio and Miryana Navarro-Monzo filed a complaint with HCAO against Washington Adventist Hospital and Drs. Frank Gravino, James Fonger, Norton Elson, and Herman Segal, alleging a number of sequential episodes of medical malpractice. The nature of the alleged malpractice is not important to the issues before us. Under CJP § 3-2A-04(b)(1)(i), appellants had until December 13, 2001, to file the required certificate. On December 13, they moved for an extension, explaining that they were working with several physicians and were awaiting expert reports, which has taken a longer period of time than expected. On January 11, 2002, the HCAO Director granted an extension of 69 days. The order did not specify when the 69-day period commenced, and thus was facially ambiguous. If the period commenced on December 14, it would have expired February 21, 2002; if it commenced on January 11, it would have expired March 21, 2002. Appellants apparently assumed that the extension ran to March 21, for, on that day, they requested a second e xtension, ag ain claiming that they were working with several physicians and were awaiting expert reports. This request was opposed by appellees. Drs. Gravino, Elson, and Segal took the position that the first extension expired on March 14, apparently on the ground that the HCAO Director s discretion was limited to an extension of 90 days from Decem ber 14, and that, as the certificate had not been filed by then, pursuant to the strict and unyield ing provisio ns provide d in the Annotated Code, no further extension could be granted and the action had to be dismissed. Neither the HCAO Director -3- nor any panel chair made any immediate ruling on either the request for extension or the motion to dism iss. On June 4, 2002, appellants, having received no response to their Ma rch 20 req uest, moved for a third ex tension, asse rting that, within 21 days, they wo uld either file the required certificate or re port that no c ertificate wo uld be forthcoming. The next day, on June 5, the HCAO Director granted a 30-day extension. As with the first extension, the order did not specify a commencement date for the 30-day period. On July 5, 2002, appellants filed a certificate from a Dr. David Davis asserting that the treatment by the appellee hospital and doctors departed from the standards of care required of them and that the departure from those standards was the proximate cause of the alleged injury. Although they no doubt disagree with Dr. Davis s conclusions, appellees have never contested the substantive validity of that certificate. On Septemb er 17, 2002 , Drs. Grav ino, Elson, a nd Sega l filed an election to waive arbitration, and, by order of the HCAO Director, the case was transferred to the Circuit Co urt for Mon tgome ry Coun ty. See CJP § 3-2A-06B(c) and (d), permitting a defendant to waive arbitration after the plaintiff has filed his/her certificate, provided that the written w aiver is filed within 60 days after all def endants h ave filed the ir own ex pert s certificate.2 In accordance with CJP § 3-2A-06 B(f), appe llants filed a co mplaint in the Circuit Co urt. That 2 The HCAO docket sheet shows that the four doctors filed expert certificates prior to waiving arbitration. There is no indication that any such certificate was filed by the hospital. As appellants do not raise that as an issue, we shall not make it one. -4- complaint was met by motions to dismiss filed by all appellees, based on the assertions that (1) the second and third requested extensions were sought pursuant to CJP § 3-2A04(b)(1)(ii), which did not allow more than one 9 0-day extension, and (2) any extension requested pursuant to CJP § 3-2A-0 4(b)(5) or 3 -2A-05( j) must be filed before the expiration of the time allowed for filing a certificate, and that the second and third requests were not timely filed. Appellees thus argued that the HCAO Director had no authority to grant the untimely requests but was, instead, required to dismiss the claim. The Circuit Co urt obviously found merit in that argume nt for, in a series of orders entered in January and February, 2003, it dismissed the complaint against all def endants w ith prejudice, citing as auth ority in each of its orders McCready Memorial Hosp. v. Hauser, 330 Md. 497, 624 A.2d 1249 (1993). Appellants appealed, and we granted certiorari on our own initiative prior to proceedings in the Court of Special Appeals to review those judgments.3 DISCUSSION Appellees present the s ame argu ment to us th at they raised in the Circuit Co urt, nam ely, that § 3-2A-04(b)(1)(ii) permits but one 90-day extension and that, if any further extension is to be sought under either § 3-2A-04(b)(5) or § 3-2A-05(j), the extension must 3 At oral argument, this Court posed the question of whether, once appellees waive d arbitra tion, any e rror in th e grantin g of an extens ion by H CAO remain ed ma terial. Because that issue was not raised or briefed by the parties, we shall address the issue that was raised and reserve the materiality question for another time. -5- be sought before the expiration of the 90-day extension granted under § 3-2A-04(b)(1)(ii). Relying on McCready, they aver that, once that extension period expires, the claim must be dismissed. Their reliance, and the Circuit Court s reliance, on McCready is misplaced. When the certificate re quiremen t was add ed in 1986 , there was no automatic extension provision. CJP § 3- 2A-04(b )(1) provide d that, unless the sole basis of the claim was the lack of informed consent, the claim had to be dismissed, without prejudice, if the claimant failed to file the certifica te within 90 days from the date of the complaint. Section 3-2A-04(b)(5) permitted an extension for good cause shown, and § 3-2A-05(j) allowed the HCAO Director or the arbitration panel chair to lengthen or shorten the time limitations for filing the certifica te for go od cau se show n. This construct came before the Court of Special Appeals in Robinson v. Pleet, 76 Md. App. 173, 544 A.2d 1 (1988). The plaintiff there filed her claim in November, 1986, but failed to file the requ ired certificate w ithin the 90-day period. On April 27, 1987, nearly five months later, one of the defendants moved to dismiss. On May 11, having received no answer from the plaintiff, the panel chairman granted the motion and dismissed the claim. Two days later, the plaintiff filed an answer, to which was attached the required certificate. That was follo wed, a w eek later, by a motion for reconsideration of the dismissal. That motion was implicitly denied when the HCAO Director entered an award in favor of the defendants. The plaintiff then filed a complaint in the Circuit Court which, on motion, was dismiss ed bec ause of the def ault at the HCA O leve l. -6- Treating the plaintiff s failure to comply with the ce rtificate requirement as equivalent to a failure to arb itrate the claim, the Court of Spe cial Appeals affirme d. The appellate court noted that, under § 3-2A-04 (b), dismissal w as mand atory if the certifica te is not filed w ithin the 90-day period. That was true, the court held, even though limitations had run on the claim, thereby precluding a refiling of it, and the failure to file the certificate was not deliberate. As we pointed out in McCready, legislative reac tion to Robinson was sw ift. At its next session following announcement of the Robinson decision, the General Assembly, after considerab le debate, amended § 3-2A-04(b) to add the mandatory extension language of subsection (b)(1)(ii) that, in lieu of dismissing the claim, the panel chair must grant an extension of not more than 90 d ays for filing the required certificate if (1) limitations had by then run on the claim, and (2) the failure to file the certificate was neither wilful nor the result of gross negligence. In McCready, the plaintiffs f iled their claim on March 14, 1990, just a few days before limitations ran. Whe n no certifica te was filed within the 90-da y period, the de fendants moved to dismiss the claim. On July 3 111 days after the claim was filed the plaintiffs requested a 90-day extension under § 3-2A-04(b)(1)(ii), alleging that limitations had run and that the failure to file the certificate was neither willful nor the result of gross negligence. They did not seek a good cause extension under §3-2A-04(b)(5) or § 3-2A-05(j) and, indeed, offered n o explana tion for the d efault. HCAO took no immediate action on the -7- request, but, following a hearing on October 17, the panel chairman dismissed the claim. No certificate had been filed, even at that point. The plain tiffs filed a co mplaint in the Circuit Court which, as in Robinson, was dismissed. The Court of Special Appeals reversed that judgmen t, but we af firmed it. McCready gave us the opportunity to examine the relationship betw een the manda tory extension provision in §3-2A-04(b)(1)(ii), on the one hand, and the good cause extension provisions in §§ 3-2A-04(b)(5) and 3-2A-05(j), on the other. We construed § 3-2A- 04(b)(1)(i) and (ii) as intended to operate in tandem and thus, where the two conditions applied, to mandate an extension of 90 days, commencing not later than the end of the first 90-day period, even w ithout a r equest . Id. at 510, 624 A.2d at 1255-56 .4 Onc e the 180 days had run, howe ver, no further extension w as permitted under § 3 -2A-04(b)(1). The good cause provisions in §§3-2A-04(b)(5) and 3-2A-05(j), we said, differ from the provision in § 3-2A-0 4(b)(1)(ii) in tha t, on the one hand, they req uire the claim ant to establish good cause and do n ot permit an extension without such a showing, but, on the other, are silent as to the timing of a request, and they do not expressly limit the length of any extension. Id. at 508, 624 A.2d at 1255. Presumably, we added, the length of the extension, if granted, would be based on the nature of the good cause shown. Id. 4 We did not take account of the prospect, in McCready, that an extension could be granted under §3-2A-04(b)(1)(ii) for less than 90 days and simply assumed that the plaintiff was entitled to a 90-day extension. That erroneous assumption made no difference in McCready. -8- There are two significant differences between McCready and this case. In McCready, the plaintiffs never sought an extension based on good cause and offered no good cause for the default, and, as noted, no certificate was ever filed with the HCAO. Although we concluded that the plaintiffs were entitled to an automatic 90-day extension under §3-2A04(b)(1)(ii), commencing on the 90th day following the date of the complaint, once that period expired without a request for further good cause extension, §3-2A-04(b)(1)(i) became applica ble and the claim was re quired to be dis missed . Here, a timely request for extension was filed, on December 13. Although that request referenced 3-2A-04(ii) an incorrect reference, as no such section ex ists it did offer a good caus e exp lana tion for the ex tension, w hich wou ld no t hav e bee n necess ary for an automatic extension under §3-2A-04(b)(1)(ii). The Director did not act on the requ est until January 11, when he granted an extension of 69 days, without indicating a commencement point. The order was facially ambiguous. As we have noted, if intended to run from December 14, 2001, the 69-day period would have expired February 21, 2002. If entered under §3-2A-0 4(b)(1)(ii), it could not, in any event, extend beyond March 14 a fact that, in light of McCready, the HC AO D irector m ust hav e know n. If the 69-day period was intended to commenc e on the date of the ord er, which, in the absence of any provision suggesting the contrary, is more likely the case, that period would end on March 21. For such a commencement date to be valid, however, the order would have to have been entered pursua nt to §3 -2A-0 4(b)(5) or §3-2 A-05 (j), based on an im plicit find ing of g ood ca use. -9- We expressly recognized that prospect in McCready, noting that th ere could conceiva bly be instances where there might be good cause to grant a request for an extension that wa s made after the initial nin ety-day period in lie u of dis missing the claim . McCready, 330 Md. at 506 n. 5, 624 A.2d at 1254 n.5. Indeed, §§3-2A-04(b)(5) and 3-2A05(j) would have little or no meaning unless read to permit good cause extensions over and above the mandatory extension called for in §3-2A-04(b)(1)(ii). In construing statutes, the paramount goal is to ascertain and carry out the in tention o f the L egislatu re. In that regard, when there are seve ral statuto ry provisions dealing with the same subject, the courts must strive, if at all possible, to harmonize and read them together, so that each may be given effect. See Balto. Gas & Elec. v. Pu blic Serv. Comm n, 305 Md. 145, 157, 501 A.2d 1307, 1313 (1986) ( [ A] provis ion contain ed within an integrated statutory scheme must be understood in that context and harmonized to the extent possible with other provisions of the statutory scheme ); State v. Ghajari, 346 Md. 101, 115, 695 A.2d 143, 149 (1997) (quoting State v. Harris, 327 Md. 32, 39, 607 A.2d 55 2, 555 (1992)) ( W e presume that the legislature intends its enactments to operate together as a consistent and harmonious body of law. ); Carter v. Maryland Management, 377 M d. 596, 6 13, 835 A.2d 1 58, 168 (2003 ) (same ). The several provisions at issue here may be read together with out a ny dif ficu lty. Recognizing the harshness of the penalty it has exacted for failing to file a certifica te within the initial 90-day perio d, the Gen eral Assem bly has provid ed three dis tinct, but com plem enta ry, escape valves. First, it has required that an extension of up to 90 days be -10- granted if the conditions s tated in §3-2 A-04(b) (1)(ii) are met. Second , in §3-2A -04(b)(5) it has provided that an exten sion witho ut any fixed sta tutory limit shall be granted by the Director or panel chairman for good cause shown. And finally, in §3-2A-05(j), it has allowed either of those persons to lengthen the time for filing the certificate, again without any fixed limitation. Especially as the right to g rant indeterm inate extensions was enacted as part of the bill that imposed the requirement in the first instance, was stated twice in the law, and was not amended in the 1989 enactmen t, there can be no doub t that it remains fu lly intact. Notwithstanding a mandatory extension under §3-2A-04(b)(1)(ii), the Director and the panel chairman retain the authority to gran t a further extension, beyond 180 days from filing of the claim, upon a showing of good cause. It is evident that the HCA O Direc tor regarded his January 11 order as ex tending to March 21, for otherwise he would not ( and under McCready could not) have granted a further extension u nder §3-2 A-04(b) (1)(ii). Althou gh the arbitra tion proces s itself is not in the nature of an administrative remedy, HCAO is an administrative agency within the Executive Branch o f the State G overnm ent (see CJP § 3-2A-03), and there fore its Director, in administering that office, acts as an administrative official. In reviewing the administrative decisions of the Director, we must afford at least the same deference that we afford to other administrative agencies in making discretionary decisions, including, in the absence of some clear indication in the record to the contrary, an assumption that the Director -11- is aware of the law controlling his/her conduct and acts in conformance with it. We may therefore properly assume th at the Direc tor was aw are of our p ronounc ements in McCready and regarded his January 11 extension of 69, rather than 90, days as one based on a finding of good cause and not as a man datory one under §3-2A -04(b)(1)(ii). Upon this analysis, the request for further extension filed March 20, based on good cause, was timely. Th e HCA O Direc tor did not ac t on that request u ntil June 5, when he granted a 30-day extension, presumably commencing from the date of the order and thus implicitly including as well the period from March 21 to June 5. As the certificate was filed on the last day of that period, it too was timely. The Circuit Court erred in dismissing the complain t. JUDGMENT OF CIRCUIT COURT FOR MONTGOMERY C OUNTY REVERSED; CASE REMAN DED TO THAT C OURT FOR FU RTHER PROCEEDINGS; COSTS TO BE PAID BY APPELLEES. -12-

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