Azarian v. Witte

• Decision Date: 04 September 2001
• Docket Number: No. 812,812
• Parties: Elizabeth AZARIAN, et vir., v. Jeffrey F. WITTE.
• Court: Court of Special Appeals of Maryland

779 A.2d 1043

140 Md. App. 69

Elizabeth AZARIAN, et vir., v. Jeffrey F. WITTE.

No. 812, Sept. Term, 2000.

Court of Special Appeals of Maryland.

September 4, 2001.

Barry J. Rosenthal (Bromberg, Rosenthal, Siegel & Goodman, and Malcolm P. Herman, on the brief), Rockville, for Appellants.

H. Kenneth Armstrong (Armstrong, Donohue, Ceppos & Vaughan, Chartered, on the brief), Rockville, for Appellee.

Argued before MURPHY, C.J., and SONNER, and KRAUSER, JJ.

KRAUSER, J.

The "attesting expert provision"¹ of the Maryland Health Care Malpractice Claims Act (the "Act")² provides that all claimants under the Act must file a "certificate of a qualified expert," more commonly known as "a certificate of merit,"³ in which an expert attests that "a departure from the standard of care" by the defendant health care provider was the proximate cause of the claimant's medical injury. That provision, however, limits who may make such an attestation by stating that an "attesting expert may not devote annually more than 20 percent of the expert's professional activities to activities that directly involve testimony in personal injury claims."⁴ It is this limitation that lies at the core of this appeal.

Appellants, Elizabeth and Mark Azarian, ask us to determine whether the Circuit Court for Montgomery County erred in ruling that appellants' expert was in violation of the 20 percent limitation on activities "directly involv[ing] testimony in personal injury claims" and that, as a result of the violation, their certificate was invalid. Because a valid certificate is a precondition to maintaining a cause of action for medical malpractice both before the Health Claims Arbitration Office ("HCAO") and the circuit court, the motion for summary judgment of appellee, Jeffrey F. Witte, M.D., was granted, and appellants' claim was dismissed. This appeal is from that dismissal.

Before addressing this issue, however, appellants request that we consider whether the circuit court had the "jurisdiction" to review their certificate in the first place and, if it did, whether appellee's motion for summary judgment, having been previously denied, was properly before that court. And finally, appellants question the constitutionality of the "attesting expert" provision, which they claim is unconstitutionally vague.

For the reasons that follow, we conclude that the circuit court did have the right to review appellants' certificate to determine whether it complied with the "attesting expert" provision of the Act and to grant appellee's second motion for summary judgment. We shall, however, reverse the judgment of the circuit court on the ground that it erred in ruling that appellants' expert had "devot[ed] annually more than 20 percent of [his] professional activities to activities that directly involve[d] testimony in personal injury claims" and was thus disqualified from serving as an "attesting expert." And, based on that erroneous conclusion, it incorrectly held that appellants' certificate was invalid and dismissed their claim. Accordingly, we shall reverse the judgment of the circuit court and remand this case to that court for further proceedings. Because this "`case can be properly disposed of on a non-constitutional ground,'" we shall not reach appellants' constitutional claim. Professional Staff Nurses Assoc. v. Dimensions Health Corp., 346 Md. 132, 138, 695 A.2d 158 (1997)(quoting State v. Lancaster, 332 Md. 385, 631 A.2d 453 (1993)).

BACKGROUND

On May 28, 1998, appellants, Elizabeth and Mark Azarian, filed a medical malpractice claim against appellee, Jeffrey F. Witte, M.D., in the Maryland Health Claims Arbitration Office (the "HCAO"), claiming that Dr. Witte's failure to treat properly Elizabeth's fractured ankle had resulted in, among other things, permanent and substantial neurological damage to that limb. The complaint consisted of two counts: one for malpractice and the other for loss of consortium.

Three weeks later, pursuant to § 3-2A-04(b), appellants filed a certificate of merit signed by Lawrence F. Honick, M.D. In that certificate, Dr. Honick certified, among other things, that "[l]ess than twenty percent (20%) of [his] professional activities are devoted annually to activities that directly involve testimony in personal injury claims." In addition to that certificate, appellants also filed a waiver of arbitration. Upon receipt of that waiver, the HCAO issued an order that day transferring appellants' claim to the Circuit Court for Montgomery County.

On July 21, 1998, appellants filed in the Circuit Court for Montgomery County a complaint for medical malpractice and loss of consortium. Several months later, appellee deposed Dr. Honick. As a result of that deposition, appellee filed a Motion in Limine and for Summary Judgment, seeking to bar Dr. Honick from testifying; Honick, appellee claimed, devotes annually "more than 20 percent of his professional activities to activities that directly involve testimony in personal injury claims," in violation of § 3-2A-04(b)(4). That motion was denied.

On February 1, 2000, a jury trial of this case began. On the third day of trial, Dr. Honick was called by appellants to testify as to the applicable standard of care and as to whether appellee's breach of that standard caused Elizabeth Azarian's injuries. Following the voir dire of Dr. Honick, appellee renewed his motion for summary judgment, claiming that Dr. Honick's voir dire testimony revealed that he devoted annually "more than 20 percent of the [his] professional activities to activities that directly involve[d] testimony in personal injury claims."

In interpreting the "attesting expert" provision, the circuit court first construed the words "directly involve testimony" to mean "the examination, preparation, depositional, and court testimony." The court explained:

[W]hen a claimant under the arbitration system comes before that system, and a physician examines not as a treating [physician], but as a forensic examining physician, and then spends time preparing with the attorney, and then spends time testifying either in deposition or in court—and I didn't include also writing up reports and the like, and reviewing other physician records, then I consider that direct activities that directly involve testimony.

It then ruled that appellee had not produced sufficient evidence that Dr. Honick had violated the 20 percent limitation of the "attesting expert" provision but nonetheless permitted Honick's voir dire to continue. Upon concluding that examination, appellee renewed his motion for summary judgment. In reviewing that motion, the circuit court stated:

The Court has received the benefit of the testimony of the witness on voir dire, and the witness I think has made it abundantly clear that a large portion of his practice, and at times the way I calculate it, is 95 percent of his practice presently.

But a most generous examination I think would be that it is somewhere above 50 percent, 50 percent or higher, during the period of time in which the witness certified was devoted to either what is referred to euphemistically on the board as an IME.

* * *

And that there were also referrals from attorneys for purposes of treatment, but that is only at most a quarter of Dr. Honick's practice. It is a fact that I find that Dr. Honick does devote more than 20 percent of his practice for the purpose of—20 percent of his professional activity is directly involved in activities that lead to testimony in personal injury claims, or could lead to testimony in personal injury claims.

And whether it actually leads to personal injury claim testimony I think is not the relevant criteria, but whether or not it could lead to it. Obviously, many claims can settle or not.

And in fact I find that Dr. Honick is greatly in excess of that at the time of the certificate and at the present time.

* * *

In this case, I think it is a proper motion to attack the basis of the certification, and therefore the basis to bring the claim if indeed the certifying expert has been demonstrated to have not presented the appropriate qualifications at the time of the certification.

The court then stated that it was "going to reserve [its ruling] on the issue of whether or not the certification was proper." At the request of both parties, however, the court reversed its position and made the following ruling:

[T]he court, in looking at the factual testimony of Dr. Honick in the light most favorable to the plaintiff, finds that 25 percent of Dr. Honick's time is devoted to the specific kind of activities which under Courts and Judicial Proceedings cannot exceed 20 percent. That is, the professional activities that directly involve testimony in personal injury claims.

And the Court treats for the purpose of this the actual testimony, the testimony preparation, the review of records, the preparation of reports, and all other forensic activity. Whether or not it results in testimony is not the issue, and that is not the standard set forth by the statute.

It says directly involved testimony, and I find that Dr. Honick's activities at the time of the making of the affidavit were 25 percent or greater. Now, the question is whether or not therefore that the affidavit and certificate are adequate. The Court finds that they are not. It is not. That if it is not, what is the sanction.

* * *

So, if it is not adequate, then the Health Claims Arbitration Action fails. Therefore, the Circuit Court action fails.

* * *

Here, where the Court finds that the certificate on its face, and based on testimony, is inadequate, inevitably leads to the conclusion that there is no basis before the Health Claims Arbitration Office; that the motion for summary judgment, or to dismiss, as might be the case—well, it would have to be summary judgment, should be granted based upon the unrebutted testimony of Dr. Honick that 25 percent of his practice at the time of the filing of the certificate was

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