D'ANGELO v. St. Agnes Healthcare, Inc.

• Decision Date: 15 July 2004
• Docket Number: No. 961,961
• Citation: 157 Md.App. 631,853 A.2d 813
• Parties: Michael D'ANGELO, Personal Representative for the Estate of Vincent D'Angelo, et al. v. ST. AGNES HEALTHCARE, INC., et al.
• Court: Court of Special Appeals of Maryland

853 A.2d 813

157 Md.App. 631

Michael D'ANGELO, Personal Representative for the Estate of Vincent D'Angelo, et al. v. ST. AGNES HEALTHCARE, INC., et al.

No. 961, Sept. Term, 2003.

Court of Special Appeals of Maryland.

July 15, 2004.

Alan J. Belsky (Belky, Weinberg & Horowitz, LLC, on brief), Baltimore, for appellant.

Gertrude C. Bartel (Susan T. Preston, Craig S. Brodsky, Goodell, DeVries, Leech & Dann, LLP, on brief), Baltimore, for appellee.

Panel MURPHY, C.J., SALMON, SHARER, JJ.

SALMON, J.

This case requires us to construe and apply section 3-2A-04(b) of the Courts and Judicial Proceedings Article of the Annotated Code of Maryland (1973, 2002 Repl.Vol.).¹ Section 3-2A-04(b) reads, in pertinent part:

(b) Filing and service of certificate of qualified expert. — Unless the sole issue in the claim is lack of informed consent:

(1)(i) Except as provided in subparagraph (ii) of this paragraph, a claim filed after July 1, 1986, shall be dismissed, without prejudice, if the claimant 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. The claimant shall serve a copy of the certificate on all other parties to the claim or their attorneys of record in accordance with the Maryland Rules.

(ii) In lieu of dismissing the claim, the panel chairman shall grant an extension of no more than 90 days for filing the certificate required by this paragraph, if:

1. The limitations period applicable to the claim has expired; and

2. The failure to file the certificate was neither willful nor the result of gross negligence.

(2) A claim filed after July 1, 1986, may be adjudicated in favor of the claimant on the issue of liability, if the defendant disputes liability and fails to file a certificate of a qualified expert attesting to compliance with standards of care, or that the departure from standards of care is not the proximate cause of the alleged injury, within 120 days from the date the claimant served the certificate of a qualified expert set forth in paragraph (1) of this subsection on the defendant. If the defendant does not dispute liability, a certificate of a qualified expert is not required under this subsection. The defendant shall serve a copy of the certificate on all other parties to the claim or their attorneys of record in accordance with the Maryland Rules.

(3) The attorney representing each party, or the party proceeding pro se, shall file the appropriate certificate with a report of the attesting expert attached. Discovery is available as to the basis of the certificate.

(Emphasis added.)

Maryland's Health Care Malpractice Claims Statute ("the Statute") requires "that a person with a medical malpractice claim [²] first file that claim with the Director of Health Claims Arbitration Office (`HCAO')." § 3-2A-04(a). McCready Mem'l Hosp. v. Hauser, 330 Md. 497, 501, 624 A.2d 1249 (1993). In McCready, the Court of Appeals interpreted section 3-2A-04(b)(1)(i) as requiring that within ninety days of the filing of a medical malpractice claim "the plaintiff must file a certificate of qualified expert (expert's certificate) attesting to a defendant's departure from the relevant standards of care which proximately caused the plaintiff's injury." Id. (emphasis added). With exceptions not here relevant, the statute also requires that "the HCAO dismiss, without prejudice, any claim where the plaintiff fails to file an expert's certificate within 90 days." Id.

In the case sub judice, the medical malpractice claimants filed suit in the HCAO, naming thirty-one defendants. Their claims were accompanied by certificates from two qualified experts. The certificates, however, did not say that any of the thirty-one defendants either departed from the standard of care or that the departure from the standard of care by any of the defendants was the proximate cause of the injuries alleged. Moreover, the certification filed with the HCAO did not have attached a report from the expert, as required by section 3-2A-04(b)(3).

After service, several of the defendants filed a certificate of their own qualified expert. Thereafter, pursuant to section 3-2A-06B(c), those defendants waived arbitration.³ The filing of that waiver had the effect of transferring plaintiffs' claims against all defendants to the Circuit Court for Baltimore City. Thereafter, all defendants filed motions for summary judgment in which they alleged that the plaintiffs' failure to comply with the requirements of section 3-2A-04(b) warranted a dismissal of the circuit court action.

The Circuit Court for Baltimore City, after a hearing on the matter, dismissed all plaintiffs' claims against all defendants, without prejudice.

One question is presented for our review:

Did the motions court err in granting appellees' motion to dismiss on the basis that the appellants failed to comply with section 3-2A-04 of the Courts and Judicial Proceedings Article?

I. BACKGROUND FACTS

The core of the problem that gives rise to this appeal concerns the contents of the two certificates filed by appellants' experts. The captions to both certificates are identical and read as follows:

MICHAEL D'ANGELO, Personal Representative of the Estate of VINCENT D'ANGELO Claimant vs ST. AGNES HOSPITAL Health Care Providers Appellants' statement of claims was accompanied by a certificate signed by Dr. Craig Bash, which read:

I, Craig N. Bash, M.D., M.B.A. do hereby certify that I am a licensed doctor in the specialty of Neuroradiology.

I do further hereby certify that less than twenty-percent (20%) of my professional activities are devoted to activities that directly involve testimony in personal injury claims.

I do further hereby certify that I have reviewed the medical records and films of Health Care Providers named in this claim, pertaining to the care and treatment rendered to Vincent D'Angelo from St. Agnes Hospital.

Based upon my training, expertise and review, 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.

(Emphasis added.)

Dr. John C. Schaefer, who is Board certified as an internist and as a specialist in infectious disease, also filed a "Certificate of Qualified Expert." His certificate was identical to that filed by Dr. Bash, with one exception. The first sentence in Dr. Schaefer's certificate replaced the first sentence found in Dr. Bash's certificate and read: "I, John C. Schaefer, M.D., do hereby certify that I am a licensed doctor in the specialty of Infectious Disease."

The defect common to both certificates is that the certifying doctors said that they had "concluded that the foregoing medical providers failed to comply with the standard of care and that such failure was the proximate cause of the injuries to Claimant, Vincent D'Angelo." But there is nothing in the certificate to indicate the identity of the health care providers who the experts believed rendered substandard care. A related problem is that the certificates said that each expert had "reviewed the medical records and films of the Health Care Providers named in this claim," even though it was later learned that when the certificates were executed the certifying experts did not know the identity of any of the health care providers who were going to be named by plaintiffs' counsel in the HCAO suit. Moreover, "St. Agnes Hospital," which is mentioned in the caption of both certificates, is not named as a defendant in the statement of claims later filed by appellants. Instead, Sterling Professional Emergency Physicians, LLC; St. Agnes Healthcare, Inc.; and twenty-nine Maryland doctors were named.

One of the plaintiffs in the suit filed with the HCAO is Michael D'Angelo, who brought a survivorship claim against the defendants in his capacity as Personal Representative of the Estate of Vincent S. D'Angelo. Additional plaintiffs were various relatives of Vincent S. D'Angelo, who brought wrongful death actions against the thirty-one defendants. The twenty-nine medical doctors sued by the plaintiffs were: Sambandam Baskaran, David B. Bullis, Phillip E. Byrd, Joseph Ciacci, Enzo Cosentino, David Elder, Elie K. Fraiji, Elizabeth A. Frankel, Theodore E. Harrison, Michelle A. Henggeler, Rus Horea, Radu S. Iancovici, Bijan Keramati, Chang W. Kang, U.D. King, Jr., Anthony Martinez, Antonio B. Martins, Sanford D. Minkin, Joseph Moran, Jose F. Morelos, Kartchik Muthasamy, Myung H. Nam, Pedro P. Purcell, Lyle T. Saylor, Kevin H. Scruggs, Henry M. Shuey, Jr., Sharon E. Silverman, Michael A. Silverman, and Donal K. Walshe.

II. ALLEGATIONS IN THE STATEMENT OF CLAIMS

The claimants alleged that in November 1998 Vincent D'Angelo (hereafter "Mr. D'Angelo") began suffering excruciating headaches. He was initially evaluated by his primary care physician, Chang W. Kang, M.D. Between January 13, 1999, and June 14, 1999, Mr. D'Angelo sought evaluation and treatment for his headaches (and related conditions) at St. Agnes Hospital, where he was treated by agents of St. Agnes Healthcare, Inc., and/or St. Agnes Community Care Center. CT scans were read as normal by various defendants, even though, according to the complaint, Mr. D'Angelo continued to experience clinical symptoms suggestive of an ongoing infectious process in his sinus cavity.

On June 15, 1999, Mr. D'Angelo once again visited the emergency room of St. Agnes Hospital. This time he was in a severely compromised mental state. A CT scan was performed the next day, which was interpreted as demonstrating findings consistent with a subdural empyema — an infectious mass that had penetrated the sinus cavity and invaded the brain. By June 16, 1999, Mr. D'Angelo was suffering from profound infection, which caused his brain to shift.

Mr....