Kearney v. Berger

• Decision Date: 28 October 2010
• Docket Number: No. 125, Sept. Term, 2009.,125, Sept. Term, 2009.
• Citation: 416 Md. 628,7 A.3d 593
• Parties: Gail A. KEARNEY, Individually, etc., et al. v. Robert S. BERGER.
• Court: Maryland Court of Appeals

7 A.3d 593

416 Md. 628

Gail A. KEARNEY, Individually, etc., et al.

v.Robert S. BERGER.

No. 125, Sept. Term, 2009.

Court of Appeals of Maryland.

Oct. 28, 2010.

Barry J. Nace (Jonathan B. Nace, Paulson & Nace, PLLC, Washington, D.C.), on brief, for appellants.

Thomas C. Marriner (Wharton, Levin, Ehrmantraut & Klein, P.A., Annapolis), on brief, for appellee.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, BARBERA and JOHN C. ELDRIDGE (Retired, specially assigned), JJ.

GREENE, J.

This is a medical malpractice case filed by the Estate of Kevin M. Kearney and four of Kearney's surviving family members ("Petitioners") against Dr. Robert Berger ("Dr. Berger"). Petitioners allege that Dr. Berger should have, but did not, perform a timely biopsy when he examined a mole on Kearney and that the mole later proved to be melanoma, a type of skin cancer. Kearney subsequently died, and Petitioners assert that Dr. Berger's failure to perform a timely biopsy led to Kearney's death. Dr. Berger disputes his liability.

Although Dr. Berger disputes that he is liable, his liability is not the issue in this appeal. We have instead been asked to determine whether Petitioners, in maintaining their cause of action, satisfied the requirements of the Health Care Malpractice Claims Act ("HCMCA"), Maryland Code (1974, 2006 Repl. Vol., 2009 Supp.), §§ 3-2A-01 to 3-2A-10 of the Courts and Judicial Proceedings Article,¹ a statute that requires arbitration of certain claims filed against health care providers. In particular, Dr. Berger argues that Petitioners failed to file a sufficient certificate of qualified expert, a document that the HCMCA typically requires. In response, Petitioners contend either that their certificate was sufficient, that Dr. Bergerwaived his challenge to the certificate's sufficiency, or that there is good cause to allow them to file a sufficient certificate even though the deadline for filing a certificate has passed. Upon our review of the case and applicable law, we shall rule in Dr. Berger's favor.

HISTORY OF THE CASE

The procedural history of this case is both complex and central to the issues before us. The case began in the Health Claims Arbitration and Dispute Resolution Office ("HCADRO"). On August 9, 2004, Petitioners initiated their action against Dr. Berger in the HCADRO, alleging that Dr. Berger failed to perform a timely biopsy on a mole, which later proved to be melanoma, when he examined Kearney during the years 2001 and 2002. Petitioners argued that this alleged failure on Dr. Berger's part was the proximate cause of Kearney's death, which occurred on August 18, 2003.

Petitioners filed a "Claim Form" in the HCADRO. Attached to the "Claim Form" was a document describing Petitioners' claims and a document that stated, in full:

Certification of Max H. Cohen, M.D. with respect to the wrongful death claim of the estate of Kevin M. Kearney and survival claims of Kearney family members against Robert S. Berger, M.D.

I am a licensed physician in the state of Maryland and have reviewed the medical record regarding the treatment of Mr. Kearney by Dr. Robert S. Berger, and his office staff, with offices at 11355 Pembrooke Square, Waldorf, Maryland. It is my opinion that the care rendered fell below the standards of care applicable to the treatment of Mr. Kearney, who had malignant melanoma, and such deviation from the standards was the proximate cause of injury and damage to Mr. Kearney, who subsequently died as a result of the melanoma.

Dated July 21, 2004

/s/

Max. H. Cohen, M.D.

This certificate was intended to satisfy § 3-2A-04(b), which typically requires HCADRO claimants to file a "certificate of qualified expert" with the Director of the HCADRO.

Dr. Berger responded to Petitioners' claim, filing a response in the HCADRO. Six months later, Dr. Berger filed a "Waiverof Arbitration" in the HCADRO, pursuant to § 3-2A-06B, which permits a HCADRO defendant to waive arbitration unilaterally at any time after the claimant has filed the certificate of qualified expert that § 3-2A-04(b) requires. The waiver stated that Dr. Berger "hereby elects to waive arbitration" in regard to Petitioners' claims. Dr. Berger filed this waiver, and then the HCADRO Director entered an order to transfer the record for the case to the Circuit Court for Anne Arundel County.

Petitioners filed their complaint, in the present case, in the Circuit Court for Anne Arundel County on July 11, 2005. In their complaint, Petitioners asserted claims substantially similar to those they had asserted in the HCADRO, specifically wrongful death and survival claims against Dr. Berger for his failure to perform a biopsy on Kearney's mole. Petitioners also stated that they "and Dr. Berger both timely filed with the [HCADRO] certificates of qualified expert as required by ... § 3-2A-04(b)." Dr. Berger filed an answer in which he generally denied any liability, and the parties proceeded with pre-trial matters.

Approximately 18 months later, on January 4, 2007, Dr. Berger filed a Motion to Dismiss. In the motion, Dr. Berger arguedthat Petitioners had failed to attach "a report of the attesting expert" with their certificate of qualified expert, as required by § 3-2A-04(b)(3). The timing of Dr. Berger's motion was not coincidental. Dr. Berger relied on our decision in Walzer v. Osborne, decided several weeks before Dr. Berger's motion, in which we held that a certificate of qualified expert is "incomplete, and therefore insufficient, ... without the report [of the attesting expert] attached" and that "failure to file a proper certificate is tantamount to not having filed a certificate at all." Walzer, 395 Md. 563, 579-82, 911 A.2d 427, 436-38 (2006) (quoting D'Angelo v. St. Agnes, 157 Md.App. 631, 645, 853 A.2d 813, 822, cert. denied, 384 Md. 158, 862 A.2d 993 (2004)). We also held "that the Legislature intended a mandatory sanction of dismissal when a claimant fails to attach the expert report."

Walzer, 395 Md. at 581, 911 A.2d at 437. Accordingly, Dr. Berger argued that the trial court must dismiss Petitioners' claims.

Petitioners responded to the "Motion to Dismiss" by filing, in the Circuit Court and the HCADRO, a "Motion for Extension of Time to Amend Certificate of Merit." In each venue, Petitioners asked for additional time to amend the certificate based on §§ 3-2A-04(b)(5) and 3-2A-05(j), both of which allow for an extension of time to file the certificate of qualified expert "for good cause shown." Petitioners argued that good cause existed because they had filed the certificate in the manner that attorneys generally understood to be required before Walzer, because Dr. Berger had not previously objected to the certificate, and because Dr. Berger filed his certificate in the same "procedural manner" as Petitioners. In response, Dr. Berger asserted several arguments why the certificate was insufficient, including that it failed to state that the attesting expert satisfied § 3-2A-04(b)(4) ² and failed to identify who had allegedly violated the standard of care. Dr. Berger also argued that Petitioners could not be granted a good cause extension because, in his view, § 3-2A-04 did not allow such extensions when more than 180 days had passed after the filing of the claim. Dr. Berger further contended that, regardless, Petitioners had not shown good cause for the extension.

Petitioners also filed a response, in the Circuit Court, to Dr. Berger's "Motion to Dismiss." Petitioners asserted a number of arguments for why dismissal was not warranted, including that the trial court should defer to the HCADRO's implied ruling on the sufficiency of the certificate and that Dr. Berger had waived the certificate requirement when he unilaterally waived arbitration. Petitioners later filed a supplemental response, arguing, among other things, that Dr. Berger had waived his argument by not specifically objecting to thesufficiency of the certificate in his answer and that Walzer should have only prospective effect.

The trial court held a motions hearing on April 23, 2007.³ At the end of the hearing, the trial judge agreed with Dr. Berger that the certificate's insufficiency required dismissal without prejudice and that a good cause extension could only be granted within 180 days from the filing ofthe claims in the HCADRO. The judge stated:

I'm going to grant the motion because I think I have to. I am doing it, in case the record is not already clear, on the basis of the Walzer opinion [,] which I think applies here.

I think the facts [in Walzer] are identical to the situation that we have here. My understanding of the law is ... that I can't extend, give them a further extension beyond the 180 days. And I have gone to that single provision that I thought might have helped[, § 3-2A-04(b)(1)(ii),] where the statute of limitations has passed.

And I believe the case makes very clear right here that even that provision will not be helpful to a claimant under the circumstances where there was no request to file for the extension within the initial 180 days from the date of the claim to the [HCADRO].

So for those reasons I feel that I have to dismiss the case without prejudice. I understand under these circumstances it may be with prejudice, but that is the ruling that I will make. And we will see what the Court of Special Appeals says.

The judge further ruled that "the certificate was also inadequate for the reasons stated in [§ 3-2A-04(b)(4)]." ⁴

Petitioners entered a notice of appeal and the case proceeded to the Court of Special Appeals. On appeal, Petitioners presented the following questions for review:

I. When a plaintiff specifically avers to having met a required precondition to filing a claim, does a defendant waive objections to that averment by failing to deny it by either pre-answer motion or in the defendant's answer itself?

II. Did the trial court err in determining that appellants' motion for extension of time must be denied as untimely; and if so, does good cause

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