Carroll v. Konits

• Decision Date: 27 July 2007
• Docket Number: No. 117, September Term, 2006.,117, September Term, 2006.
• Citation: 400 Md. 167,929 A.2d 19
• Parties: Mary CARROLL v. Phillip H. KONITS, M.D. et al.
• Court: Court of Special Appeals of Maryland

929 A.2d 19

400 Md. 167

Mary CARROLL v. Phillip H. KONITS, M.D. et al.

No. 117, September Term, 2006.

Court of Appeals of Maryland.

July 27, 2007.

Darren Margolis (Bierer, Margolis & Curtis, P.A. of Baltimore), on brief, for appellant.

Michelle R. Callender (Wharton, Levin, Ehrmantraut & Klein, P.A. of Annapolis), on brief, for appellees.

George S. Tolley, III, Dugan, Babij & Tolley, LLC, Timonium, for brief of Amicus Curiae Maryland Trial Lawyers Association.

Albert D. Brault, Joan F. Brault, Brault Graham, LLC, Rockville, brief of Amici Curiae, Medical Mutual Liability Ins. Society of Maryland and Medstar Health, Inc.

Argued before BELL C.J., RAKER, CATHELL, HARRELL, BATTAGLIA, GREENE, and WILNER, ALAN M. (Retired, specially assigned), JJ.

CATHELL, J.

This matter arises from a medical malpractice claim filed by Mary Carroll, appellant, against Dr. Phillip H. Konits and Dr. Efem E. Imoke, appellees. Carroll, in accordance with applicable law, initially filed her complaint with the Health Care Alternative Dispute Resolution Office (the "HCADRO").¹ Thereafter, the claim was transferred to the Circuit Court for Baltimore City. The Circuit Court dismissed the case on various grounds, including, but not limited to, Carroll's failure to submit a proper certificate of qualified expert ("Certificate")² as required by the Health Care Malpractice Claims Statute (the "Statute"), Maryland Code (1974, 2002 Repl.Vol., 2006 Cum.Supp.), § 3-2A-04(b) of the Courts and Judicial Proceedings Article.

Carroll filed a timely appeal to the Court of Special Appeals. On January 2, 2007, while the appeal was pending in the intermediate appellate court, this Court issued a writ of certiorari on its own motion to review the following question:

"Did the Circuit Court err in finding that Mary Carroll's expert witness report and certification was legally insufficient, thereby dismissing the case?"

Carroll v. Konits, 396 Md. 524, 914 A.2d 768 (2007).

We hold that a Certificate is a condition precedent and, at a minimum, must identify with specificity, the defendant(s) (licensed professional(s)) against whom the claims are brought, include a statement that the defendant(s) breached the applicable standard of care, and that such a departure from the standard of care was the proximate cause of the plaintiff's injuries. In the case sub judice, the certificate was incomplete because it failed to specifically identify the licensed professionals who allegedly breached the standard of care and failed to state that the alleged departure from the standard of care, by whichever doctor the expert failed to identify, was the proximate cause of Carroll's injuries. Therefore, because the Certificate is a condition precedent, the Circuit Court for Baltimore City correctly granted the appellees' motion to dismiss the case and, accordingly, we affirm the judgment of the Circuit Court for Baltimore City.

I. Factual and Procedural Background

On September 19, 2001, Dr. Imoke performed a unilateral mastectomy of Carroll's left breast. As a part of the procedure, Dr. Imoke left a catheter³ inside Carroll's chest so that chemotherapy could be administered. Carroll claims that she was not aware that the catheter was inserted at the time that it occurred. The catheter was supposed to be removed within two months after Carroll completed chemotherapy. Dr. Imoke, however, did not make a follow-up appointment to remove the catheter. Instead, he relied on Dr. Konits, Carroll's oncologist, to inform him that Carroll had completed chemotherapy.

She completed chemotherapy on April 11, 2002. The catheter was not removed, however, until March 25, 2003 — two and one-half years after it was initially inserted. Carroll asserts that she suffered pain and discomfort, a deep vein thrombosis, and chronic venous stasis of the right arm with chronic lymph edema due to the catheter being left inside her chest for a prolonged period of time.

On March 25, 2005, Carroll filed a complaint with the HCADRO. She alleged that Drs. Konits and Imoke were negligent in failing to communicate the need to have the catheter removed in a timely manner. Approximately four months later, on August 4, 2005, Carroll filed a letter signed by Dr. Wanda J. Simmons-Clemmons, which purported to be a Certificate. Dr. Simmons-Clemmons summarized a timeline of Carroll's medical treatments and then wrote:

"In my professional opinion, there was no clear communication to the patient that indicated she should seek medical attention in the removal of the catheter from her chest after chemotherapy was completed. If this was done, it was not documented. Secondly, there was mention made of an approximate time chemo should be completed by Dr. Konits in his consult dated January 31, 2002. The note was signed off by Dr. Ohio; however, there was mention of completion of chemo in multiple subsequent office visits. Also, the patient was to follow-up with Dr. Imoke in September 2002. Again, no mention was made that the patient should call sooner if and when chemo ended. Neither was the patient recalled for her September 2002 followup. If this was done I do not have a copy of the documentation of it. Thirdly, it does appear that Mrs. Mary Carroll suffered complications arising from having a catheter in place for too long[,] i.e. A DVT and chronic venous stasis of the right arm with chronic lymphedema."

On October 3, 2005, after more than 180 days had elapsed from the time that Carroll initially filed her complaint,⁴ Drs. Konits and Imoke filed a motion to dismiss the claim with the HCADRO on the basis that Dr. Simmons-Clemmons's documentation was deficient under the requirements set forth in § 3-2A-04(b) of the Courts and Judicial Proceedings Article. Drs. Konits and Imoke claimed that Carroll failed to file a Certificate and that she merely tendered an informal, unsworn letter. On October 5, 2005, Carroll requested that, "in the interest of justice[,]" the Director grant her an additional 60 days to correct the deficiencies in the document filed.⁵ The Director acting, "in the interest of justice," granted Carroll's request for additional time, giving her until December 1, 2005, to correct the deficiencies. On October 28, 2005, Carroll submitted an amended certification in an attempt to cure the defects in the original submission. The certificate again contained a summary of Carroll's medical visits and treatments and included the same language quoted supra, except that Dr. Simmons-Clemmons altered the language from "it does appear that Mrs. Mary Carroll suffered complications arising from having a catheter in place for too long" to "having a catheter in place for longer than what is standard treatment[.]" (Emphasis added).

Additionally, a new paragraph was added to the second letter that stated:

"It is my professional opinion that Mrs. Carroll sustained injury secondary to below standard of care received in regards to removal of the Hickman catheter after chemotherapy. Please be advised that I do not devote more than 20 percent of my annual time to activities that directly involve personal injury claims."

On December 2, 2005, Dr. Konits renewed his motion to dismiss on the grounds that the updated certificate still failed to meet the specific requirements of § 3-2A-04(b). On or about the same date, Carroll waived arbitration and the matter was transferred to the Circuit Court for Baltimore City.

On December 30, 2005, Dr. Konits filed a motion to dismiss in the Circuit Court for Baltimore City on the same grounds as the previous two — that the certificate and report did not comply with the relevant provisions of the Statute. On March 22, 2006, the Circuit Court dismissed the case against Dr. Konits.⁶ This appeal ensued.

II. Standard of Review

When an appellate court reviews a trial court's grant of a motion to dismiss a complaint: "[T]he truth of all well-pleaded relevant and material facts is assumed, as well as all inferences which can be reasonably drawn from the pleadings." Odyniec v. Schneider, 322 Md. 520, 525, 588 A.2d 786, 788 (1991). Generally, dismissal at the trial court level will only be ordered if, after assuming the allegations and permissible inferences flowing therefrom are true, the plaintiff would not be afforded relief. McNack v. State, 398 Md. 378, 920 A.2d 1097, 1102 (2007) (citing Lloyd v. General Motors Corp., 397 Md. 108, 121, 916 A.2d 257, 264 (2007)).

III. Discussion

The Health Care Malpractice Claims Statute has consistently been interpreted by this Court as an attempt by the General Assembly, in substantial part, to limit the filing of frivolous malpractice claims. See Witte v. Azarian, 369 Md. 518, 526, 801 A.2d 160, 165 (2002) (recognizing that the General Assembly passed the Statute as part of a "multi-phase response to the malpractice insurance `crisis' that arose in 1974. . . ."); McCready Memorial Hosp. v. Hauser, 330 Md. 497, 500, 624 A.2d 1249, 1251 (1993) ("[T]he General Assembly enacted the [Statute] in response to explosive growth in medical malpractice claims and the resulting effect on health care providers' ability to obtain malpractice insurance."); Attorney General v. Johnson, 282 Md. 274, 278-79, 385 A.2d 57, 60 (1978) (recognizing that: "[T]he general thrust of the Act is that medical malpractice claims be submitted to arbitration as a precondition to court action . . . .") overruled on other grounds by Newell v. Richards, 323 Md. 717, 734, 594 A.2d 1152, 1161 (1991).⁷ What little legislative history remains from the passage of the original Statute supports this interpretation.

On July 23, 1975, the President of the Senate and the Speaker of the House created the Medical Malpractice Insurance Study Committee (the "Committee") to craft and propose solutions to the medical malpractice problems confronting the State. State of Md. Medical Malpractice Ins. Study Comm., Report to the President of the Senate and the Speaker of the House, p. 1, (January 6,...