Lewis v. St. Thomas More Nursing Home

• Decision Date: 03 November 2016
• Docket Number: No. 1851,1851
• Citation: Lewis v. St. Thomas More Nursing Home, No. 1851 (Md. App. Nov 03, 2016)
• Parties: SYLVIA B. LEWIS v. ST. THOMAS MORE NURSING HOME
• Court: Court of Special Appeals of Maryland

SYLVIA B. LEWIS v. ST. THOMAS MORE NURSING HOME

No. 1851

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2015

November 3, 2016

UNREPORTED

Meredith, Friedman, Zarnoch, Robert A. (Senior Judge, Specially Assigned), JJ.

Opinion by Zarnoch, J.

* This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority.Md. Rule 1-104.

Following the death of her mother, Reverend Sylvia B. Lewis, appellant, filed a claim with the Health Care Alternative Dispute Resolution Office("HCADRO") against St. Thomas More Skilled Nursing Facility ("St. Thomas More").The claim was later dismissed after appellant failed to name the proper legal entity as the defendant.Appellant filed a motion for reconsideration that was subsequently denied.Appellant then filed a rejection of the award with HCADRO and a petition for judicial review with the Circuit Court for Prince George's County.The petition for judicial review was dismissed as untimely.

Appellant appealed, and now presents two issues for our review:

1.Whether the circuit court erred in dismissing appellant's Petition for Judicial Review in light of appellant's substantial compliance with the provisions of CJP § 3-2A-06.

2.Whether the HCADRO Panel Chairperson erred in dismissing appellant's Statement of Claim and failing to grant her leave to amend her Statement of Claim.

For the following reasons, we affirm the judgment of the circuit court dismissing appellant's petition.We do not address appellant's second issue.

BACKGROUND

On February 24, 2011, Mattie Byrd, a ninety-six year old woman, was admitted to St. Thomas More for wound care.Ms. Byrd already had a Foley Catheter in place at the time she was admitted to St. Thomas More.Ms. Byrd's daughter, appellant, regularly visited her mother at the nursing home.During a visit on May 13, 2011, appellant found Ms. Byrd to be in pain and alerted the staff.The staff administered pain medication, butthe pain persisted.Appellant insisted that Ms. Byrd be taken to a hospital, and she was taken to Washington Hospital Center ("WHC").The doctors at WHC removed Ms. Byrd's Foley Catheter, which revealed a backup of urine.They then replaced her catheter and diagnosed her with a urinary tract infection.WHC continued to treat Ms. Byrd for another two weeks before discharging her.Four days after being released from WHC, Ms. Byrd died from Urosepsis.

On March 26, 2014, appellant filed a claim with HCADRO against St. Thomas More and its doctors.Appellant claimed that St. Thomas More violated state and federal law by not having a comprehensive care plan for her mother's Foley Catheter.On May 30, 2014, St. Thomas More filed a motion to dismiss for failing to sue the proper legal entity, arguing that the proper legal entity was Neiswanger Management Services, LLC, which managed St. Thomas More.On July 1, 2014, HCADRO granted the motion and dismissed the claim.Appellant filed a motion for reconsideration, arguing that she did not receive the motion to dismiss prior to her claim being dismissed.HCADRO vacated its order dismissing the case and allowed appellant time to file an opposition.On September 13, 2014, appellant filed her opposition to the motion to dismiss.On October 14, 2014, HCADRO denied the motion to dismiss.

On February 6, 2015, St. Thomas More filed a renewed motion to dismiss, reiterating its previous argument and adding that appellant had failed to correct the error.On February 21, 2015, appellant filed another opposition.On March 2, 2015, HCADRO granted the motion and dismissed appellant's claim.Appellant filed a motion forreconsideration on March 16, 2015.The motion was denied on April 17, 2015.Fourteen days later, on May 1, 2015, appellant filed a Rejection of the Award with HCADRO.On May 13, 2015, appellant filed a Petition for Judicial Review in the Circuit Court for Prince George's County.

On May 27, 2015, St. Thomas More filed a motion to dismiss the petition for judicial review.St. Thomas More argued that appellant had failed to meet the filing requirements for such a petition.Appellant filed an opposition on June 12, 2015.On August 27, 2015, the Circuit Court for Prince George's County held a hearing, after which the court granted the motion to dismiss.

On September 11, 2015, appellant filed a motion for reconsideration.The court denied the motion on September 23, 2015.Appellant appealed the court's dismissal.

STANDARD OF REVIEW

"[W]here an order involves an interpretation and application of Maryland constitutional, statutory or case law, our Court must determine whether the trial court's conclusions are 'legally correct' under a de novo standard of review."Schisler v. State, 394 Md. 519, 535(2006).

DISCUSSION

Section 3-2A-06 of the Courts and Judicial Proceedings Article sets forth the procedural requirements necessary to obtain judiciary review of a HCADRO award.Subsection (a) provides that:

A party may reject an award or the assessment of costs under an award for any reason.A notice of rejection must be filedwith the Director and the arbitration panel and served on the other parties or their counsel within 30 days after the award is served upon the rejecting party, or, if a timely application for modification or correction has been filed within 10 days after a disposition of the application by the panel, whichever is greater.

Md. Code(1973, 2013 Repl. Vol.), Courts and Judicial Proceedings Article ("CJP"), § 3-2A-06(a)(Emphasis added).Subsection (b) adds that this same time period for filing applies when the party rejecting the "award" files an action in court to nullify the award, and that "[f]ailure to file this action timely in court shall constitute a withdrawal of the notice of rejection."CJP § 3-2A-06(b).Therefore, when a party files a motion for reconsideration, as appellant in this case did, the party's petition for judicial review must be filed with the circuit court within ten days of the denial of that motion for reconsideration.

In the instant case, appellant's claim was dismissed by HCADRO on March 2, 2015.Appellant's motion for reconsideration was filed on March 16, 2015, and denied on April 17, 2015.Therefore, in accordance with the requirements of CJP § 3-2A-06(b), appellant had ten days from April 17, 2015 to file her petition for judicial review.Instead, appellant filed her petition for judicial review on May 13, 2015, twenty-six days after the disposition of her motion for reconsideration.

Appellant asserts that even though the motion was denied on April 17, 2015, the order was not mailed until April 21, 2015, and not received by her until April 23, 2015.Accordingly, appellant contends that it would be "unconscionable, and a denial of appellant's right of due process, to calculate the ten-day period from the date of theorder."Appellant argues that the deadline should instead be ten days from April 23, 2015, which would be May 3, 2015.Appellant did file her notice of rejection with HCADRO on May 1, 2015, which was within that timeframe.However, appellant did not file her petition for judicial review until May 13, 2015.On appeal, appellant argues that her late filing constituted "substantial compliance" with the provisions of CJP § 3-2A-06.

In Tranen v. Aziz, 304 Md. 605(1985), the Court of Appeals recognized the importance of the two filing requirements in CJP § 3-2A-06.The Court stated:

Submission of the malpractice dispute to arbitration does not in itself satisfy the condition precedent to court action; the litigants must follow the special statutory procedures prescribed by the Act.Both the notice of rejection provision ("notice of rejection must be filed"§ 3-2A-06(a)(emphasis supplied)) as well as the action to nullify provision ("the party rejecting the award shall file an action in court to nullify the award"§ 3-2A-06(b)(emphasis supplied)) are posed in imperative terms.More important, the statutory context of these directives plainly shows that compliance with them is mandatory and that noncompliance mandates dismissal.

The purpose of the legislative scheme is clear upon careful analysis.The notice of rejection serves as the final step in the arbitration procedure by which the award may be held non-binding and the claim held open for judicial resolution.The action to nullify, on the other hand, is the exclusive step by which the aggrieved party may initiate proceedings in court.

Tranen, 304 Md. at 612(Emphasis added)(Citations omitted).In other words, "strict compliance with the statutory scheme was required."Curry v. Hillcrest Clinic, Inc., 99 Md. App. 477, 489(1994), aff'd, 337 Md. 412(1995).

Appellant contends that this strict compliance standard has since eroded in recent cases, and that substantial compliance with the statute is sufficient.St. Thomas More does not dispute that the substantial compliance standard does exist, but it contends that this case is not an example of substantial compliance.We described this development in Wimmer v. Richards, stating that:

Erosion of the strict compliance standard announced in Tranen began in Mitcherling v. Rosselli, 61 Md. App. 113, 484 A.2d 1060(1984), aff'd, 304 Md. 363, 499 A.2d 476(1985).In that case, the appellant-claimant failed to send a Notice of Rejection to each of the members of the arbitration panel in violation of § 3-2A-06(a).This Court affirmed the refusal by the circuit court to dismiss the appeal, holding that the claimant had "substantially complied" with the statutory provisions.Mitcherling, 61 Md. App. at 121, 484 A.2d 1060.We also noted that technical irregularities will not be permitted to deprive a party of an opportunity to assert his or her legal rights when the other party has not been prejudiced.Mitcherling, 61 Md. App. at 121, 484 A.2d 1060.The Court of Appeals held that filing the notice with the

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