Jordan v. Elyassi's Greenbelt Oral & Facial Surgery, P.C.
| Decision Date | 29 December 2022 |
| Docket Number | 1049-2021 |
| Parties | MELISSA PHILLIPS JORDAN v. ELYASSI'S GREENBELT ORAL & FACIAL SURGERY, P.C., ET AL. |
| Court | Court of Special Appeals of Maryland |
MELISSA PHILLIPS JORDAN
v.
ELYASSI'S GREENBELT ORAL & FACIAL SURGERY, P.C., ET AL.
No. 1049-2021
Court of Special Appeals of Maryland[*]
December 29, 2022
Circuit Court for Prince George's County Case No. CAL20-03390
Reed, Shaw, Albright, JJ.
OPINION
ALBRIGHT, J.
This case presents an issue of statutory construction. We must interpret Section 3-2A-02(c)(2)(ii) of the Courts and Judicial Proceedings Article, which is part of the Healthcare Malpractice Claims Act ("HCMCA").[1] Under the HCMCA, the plaintiff in a medical malpractice action typically must file a valid Certificate of Qualified Expert ("CQE") to support a claim of malpractice.[2] Otherwise, the malpractice claim cannot proceed. A valid CQE must be signed by an attesting expert, and Section 3-2A-02(c)(2)(ii) sets forth certain requirements that the attesting expert must have met within five years of the alleged malpractice at issue. If the defendant is board certified in a specialty,[3] the statute also imposes a further requirement on the attesting expert (board certification in the same or a related specialty), as well as two exceptions to that requirement. This appeal concerns the scope of the second exception to the board certification requirement: the exception for an attesting expert who "taught medicine in
the defendant's specialty or a related field[.]" See Md. Code, Cts. &Jud. Proc. § 3-2A-02(c)(2)(ii)(2)(B).
The Appellant, Dr. Melissa Phillips Jordan,[4] brought a malpractice action against the Appellees, Dr. Ali Reza Elyassi, and his practice, Elyassi's Greenbelt Oral &Facial Surgery, P.C., in the Circuit Court for Prince George's County. Dr. Elyassi is board certified in a specialty, and the attesting expert who signed Dr. Jordan's CQE is not. The attesting expert, however, has clinical experience in a related field within five years of the alleged malpractice at issue. He also taught as an assistant professor in that same field for approximately two years during the 1970s (decades before Dr. Jordan's claim arose). At that time, however, the technologies used in that field had not advanced to the point that they are at today, and the attesting expert did not teach the procedures that Dr. Elyassi used in treating Dr. Jordan because they had not yet been developed. On Dr. Elyassi's motion, the circuit court struck Dr. Jordan's CQE and dismissed her complaint with prejudice, holding that the attesting expert's teaching experience was not recent enough to satisfy the exception to the board certification requirement. Dr. Jordan timely appealed, posing two questions for our consideration:
1. Did the Circuit Court err by determining that Appellant's CQE was insufficient because the certifying expert had not taught medicine in Dr. Elyassi's specialty or a related field of health care within five years of his alleged underlying negligence
2. Did the Circuit Court err by dismissing Appellant's Complaint with prejudice
We answer both questions in the affirmative. In so doing, we conclude that an expert who taught medicine[5] in a related field satisfies an exception to the board certification requirement, pursuant to Section 3-2A-02(c)(2XiiX2XB) of the Courts and Judicial Proceedings Article, regardless of when that teaching experience occurred. In the alternative, we conclude that the circuit court erred in dismissing Dr. Jordan's complaint with prejudice.[6] We will reverse the judgment of the circuit court.
BACKGROUND
I. Treatment of Dr. Jordan
For purposes of this appeal, we accept as true the allegations in Dr. Jordan's complaint, which we summarize as follows. Dr. Elyassi is a board certified oral and maxillofacial surgeon and the owner of his surgery practice, Elyassi's Greenbelt Oral &Facial Surgery, P.C. In 2017, Dr. Elyassi provided treatment to Dr. Jordan related to two dental implants, which had been installed some years prior. As part of the treatment, Dr. Elyassi removed Dr. Jordan's existing dental implants and installed replacements, a procedure involving both implant placement and bone grafting. That procedure failed. Dr. Jordan returned to Dr. Elyassi about two weeks later, complaining of persistent pain and discomfort. Dr. Elyassi performed additional work, but Dr. Jordan was nonetheless left
with a postoperative infection and a need for further surgery. Eventually, Dr. Jordan sought treatment from a different provider unaffiliated with Dr. Elyassi's practice, who provided Dr. Jordan with additional diagnostic and surgical care.
II. Circuit Court Litigation
Approximately two years after the failed procedure, Dr. Jordan filed a complaint against Dr. Elyassi and his practice in the circuit court.[7] The complaint included only one count, styled "dental/medical negligence[,]" which we will refer to as "Dr. Jordan's malpractice claim." Dr. Jordan supported this claim with a CQE,[8] which was executed by Dr. Michael Kossak, a periodontist,[9] as the attesting expert. In that CQE, Dr. Kossak certified his opinion that, to a reasonable degree of scientific and dental probability, Dr. Elyassi and his practice deviated from the applicable standards of care in treating Dr. Jordan, and that deviation was the proximate cause of Dr. Jordan's alleged injuries.
A period of initial discovery followed, with a particular focus on Dr. Kossak's credentials. Dr. Kossak obtained his D.D.S. degree in 1971. After completing a residency in periodontics, he taught periodontics for approximately two years in the 1970s as a fulltime assistant clinical professor at Georgetown University. At that time, implants and bone grafting did not exist as treatment options, so Dr. Kossak did not teach those subjects as part of the periodontics curriculum. After leaving Georgetown, Dr. Kossak practiced periodontics for approximately 30 years, though he never became board certified in any specialty. Once the necessary technologies developed in the 1980s and 1990s, Dr. Kossak incorporated implants and bone grafting into his active periodontics practice. He retired in 2015, but returned to practice part-time two years later, seeing patients once per week through the first few months of 2021. Although he no longer placed implants during his part-time practice, he continued to perform bone grafts in certain cases. Dr. Kossak estimated that, throughout his 35-year career as a practicing periodontist, he served as an expert in legal proceedings only ten times in total.[10]
After confirming that Dr. Kossak had never been board certified in a specialty, Dr. Elyassi moved to strike the CQE and dismiss Dr. Jordan's malpractice claim. In so doing, Dr. Elyassi conceded that Dr. Kossak practiced periodontics within five years of the alleged malpractice at issue and that periodontics was a sufficiently related field (at least as of the time of the alleged malpractice). Dr. Elyassi, however, argued that Dr. Kossak
did not meet the board certification requirement and that his teaching experience in the 1970s was not recent enough to satisfy the statutory exception. Dr. Jordan disagreed, arguing that teaching experience in a related specialty should mean that the board certification requirement does not apply, regardless of when that teaching experience occurred.
After a hearing, the circuit court found that the board certification requirement and its exceptions were "ambiguous" and adopted Dr. Elyassi's interpretation.[11] The circuit court then granted Dr. Elyassi's motion, striking Dr. Jordan's CQE and dismissing her complaint with prejudice because her attesting expert had not taught medicine within five years of the alleged malpractice. Dr. Jordan timely appealed.
THE PARTIES' CONTENTIONS
Dr. Jordan argues that Section 3-2A-02(c)(2)(ii) of the Courts and Judicial Proceedings Article, which sets forth the qualifications that an attesting health care provider must have to execute a CQE, is not ambiguous and should be interpreted as written. She explains that the section is structured in two parts, each of which imposes separate requirements on attesting experts. The first part outlines the basic experience requirements that all attesting experts must possess, regardless of whether the defendant is board certified in a specialty. See Md. Code, Cts. &Jud. Proc. § 3-2A-
02(c)(2)(ii)(1)(A). It also contains a five-year recency requirement, meaning that an expert's experience will not satisfy the statutory requirements unless it occurred within five years of the date of the alleged malpractice. The second part imposes a board certification requirement on the attesting expert, but only if the defendant is board certified in a specialty. Even then, the statute provides two exceptions to the board certification requirement. See Md. Code, Cts. &Jud. Proc. §§ 3-2A-02(c)(2)(ii)(1)(A); 3-2A-02(c)(2)(ii)(2). Dr. Jordan points out that the exception at issue here (where the attesting expert "taught medicine in the defendant's specialty or a related field of health care") does not include any recency requirement-much less a five-year requirement. Thus, Dr. Kossak's prior teaching experience exempts him from the board certification requirement, even though that teaching experience occurred more than five years before the alleged malpractice here.[12]
Dr. Jordan further argues that the circuit court erred in dismissing her complaint with prejudice. Pointing to language in the HCMCA that provides only for dismissal without prejudice for the failure to file a valid CQE, she asserts that the circuit court did not have discretion to dismiss her complaint with prejudice.
In contrast, Dr. Elyassi argues that the five-year recency requirement in the first part of the statute also limits the exceptions to the requirements of the second part of the
statute. Although he concedes that the statute "may not be ambiguous [when] read in a vacuum," he nevertheless asserts that "common sense" requires...
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