Navarro-Monzo v. Washington Adventist, 69
Citation | 380 Md. 195,844 A.2d 406 |
Decision Date | 11 March 2004 |
Docket Number | No. 69,69 |
Parties | Julio J. NAVARRO-MONZO, et ux. v. WASHINGTON ADVENTIST HOSPITAL t/a ADVENTIST HEALTHCARE, INC., et al. |
Court | Court of Appeals of Maryland |
Samuel M. Grant (David J. Preller, Jr., Preller and Preller, on brief), Towson, for appellants.
Francis X. Leary , for appellees.
Argued before BELL, C.J. RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA, ELDRIDGE, JOHN C. (Retired, Specially Assigned), JJ.
The Circuit Court for Montgomery County dismissed this medical malpractice action because, in that court's view, appellants failed, when the case was pending before the Health Claims Arbitration Office, to file an expert's certificate within the time limit set forth in Maryland Code, § 3-2A-04(b) of the Courts and Judicial Proceedings Article (CJP). We believe that the court erred and shall therefore reverse.
Title 3, subtitle 2A of CJP creates an arbitration program for the resolution of medical injury claims made against health care providers, in which damages in excess of the concurrent jurisdiction of the District Court (currently $25,000) are sought. CJP, §§ 3-2A-02(a) and 3-2A-04 require that all such claims be filed initially with the Health Claims Arbitration Office (HCAO). Unless the jurisdiction of that office is waived pursuant to § 3-2A-06A or § 3-2A-06B, those claims are submitted to a form of non-binding arbitration, subject to de novo trial in the Circuit Court. See §§ 3-2A-05 and 3-2A-06.
In 1986, the General Assembly added a new requirement to the program. Section 3-2A-04(b)(1)(i) requires that the claim be dismissed if the claimant fails to file with the Director of HCAO, within 90 days after the date of the complaint, a certificate of a qualified expert attesting (1) to a departure from the standard of care by the defendant, and (2) that the departure was the proximate cause of the alleged injury. With amendments added in 1989, however, § 3-2A-04(b)(1)(ii) states that, in lieu of dismissing the claim, the arbitration panel chair "shall grant an extension of no more than 90 days" for filing the required certificate 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. If the plaintiff files the certificate and the defendant wishes to dispute liability, the defendant must then file a certificate from a qualified expert attesting either to compliance with the standard of care or that the alleged departure was not the proximate cause of the alleged injury. If the defendant fails to file such a certificate within 120 days after service of the plaintiff's certificate, the claim may be adjudicated in favor of the plaintiff on the issue of liability. See § 3-2A-04(b)(2).
Two other statutory provisions—the ones principally at issue here—provide some relief from these time requirements. Section 3-2A-04(b)(5) states that "[a]n extension of the time allowed for filing a certificate of a qualified expert under this subsection shall be granted for good cause shown." (Emphasis added). Section 3-2A-05(j), which is part of the section dealing specifically with arbitration of the claim, provides that "[e]xcept for time limitations pertaining to the filing of a claim or response, the [HCAO] Director or the [arbitration] panel chairman, for good cause shown, may lengthen or shorten the time limitations prescribed in subsections (b) and (g) of this section and § 3-2A-04 of this article." (Emphasis added).1
On September 14, 2001, appellants Julio and Miryana Navarro-Monzo filed a complaint with HCAO against Washington Adventist Hospital and Drs. Frank Gravino, James Fonger, Norton Elson, and Herman Segal, alleging a number of sequential episodes of medical malpractice. The nature of the alleged malpractice is not important to the issues before us. Under CJP § 3-2A-04(b)(1)(i), appellants had until December 13, 2001, to file the required certificate. On December 13, they moved for an extension, explaining that they were working with several physicians and were awaiting expert reports, "which has taken a longer period of time than expected." On January 11, 2002, the HCAO Director granted an extension of 69 days. The order did not specify when the 69-day period commenced, and thus was facially ambiguous. If the period commenced on December 14, it would have expired February 21, 2002; if it commenced on January 11, it would have expired March 21, 2002.
Appellants apparently assumed that the extension ran to March 21, for, on that day, they requested a second extension, again claiming that they were working with several physicians and were awaiting expert reports. This request was opposed by appellees. Drs. Gravino, Elson, and Segal took the position that the first extension expired on March 14, apparently on the ground that the HCAO Director's discretion was limited to an extension of 90 days from December 14, and that, as the certificate had not been filed by then, "pursuant to the strict and unyielding provisions provided in the Annotated Code," no further extension could be granted and the action had to be dismissed. Neither the HCAO Director nor any panel chair made any immediate ruling on either the request for extension or the motion to dismiss.
On June 4, 2002, appellants, having received no response to their March 20 request, moved for a third extension, asserting that, within 21 days, they would either file the required certificate or report that no certificate would be forthcoming. The next day, on June 5, the HCAO Director granted a 30-day extension. As with the first extension, the order did not specify a commencement date for the 30 day period. On July 5, 2002, appellants filed a certificate from a Dr. David Davis asserting that the treatment by the appellee hospital and doctors departed from the standards of care required of them and that the departure from those standards was the proximate cause of the alleged injury. Although they no doubt disagree with Dr. Davis's conclusions, appellees have never contested the substantive validity of that certificate.
On September 17, 2002, Drs. Gravino, Elson, and Segal filed an election to waive arbitration, and, by order of the HCAO Director, the case was transferred to the Circuit Court for Montgomery County. See CJP § 3-2A-06B(c) and (d), permitting a defendant to waive arbitration after the plaintiff has filed his/her certificate, provided that the written waiver is filed within 60 days after all defendants have filed their own expert's certificate.2 In accordance with CJP § 3-2A-06B(f), appellants filed a complaint in the Circuit Court. That complaint was met by motions to dismiss filed by all appellees, based on the assertions that (1) the second and third requested extensions were sought pursuant to CJP § 3-2A-04(b)(1)(ii), which did not allow more than one 90-day extension, and (2) any extension requested pursuant to CJP § 3-2A-04(b)(5) or 3-2A-05(j) must be filed before the expiration of the time allowed for filing a certificate, and that the second and third requests were not timely filed. Appellees thus argued that the HCAO Director had no authority to grant the untimely requests but was, instead, required to dismiss the claim.
The Circuit Court obviously found merit in that argument for, in a series of orders entered in January and February, 2003, it dismissed the complaint against all defendants with prejudice, citing as authority in each of its orders McCready Memorial Hosp. v. Hauser, 330 Md. 497, 624 A.2d 1249 (1993). Appellants appealed, and we granted certiorari on our own initiative prior to proceedings in the Court of Special Appeals to review those judgments.3
Appellees present the same argument to us that they raised in the Circuit Court, namely, that § 3-2A-04(b)(1)(ii) permits but one 90-day extension and that, if any further extension is to be sought under either § 3-2A-04(b)(5) or § 3-2A-05(j), the extension must be sought before the expiration of the 90-day extension granted under § 3-2A-04(b)(1)(ii). Relying on McCready, they aver that, once that extension period expires, the claim must be dismissed. Their reliance, and the Circuit Court's reliance, on McCready is misplaced.
When the certificate requirement was added in 1986, there was no automatic extension provision. CJP § 3-2A-04(b)(1) provided that, unless the sole basis of the claim was the lack of informed consent, the claim had to be dismissed, without prejudice, if the claimant failed to file the certificate within 90 days from the date of the complaint. Section 3-2A-04(b)(5) permitted an extension for good cause shown, and § 3-2A-05(j) allowed the HCAO Director or the arbitration panel chair to lengthen or shorten the time limitations for filing the certificate for good cause shown.
This construct came before the Court of Special Appeals in Robinson v. Pleet, 76 Md.App. 173, 544 A.2d 1 (1988). The plaintiff there filed her claim in November, 1986, but failed to file the required certificate within the 90-day period. On April 27, 1987, nearly five months later, one of the defendants moved to dismiss. On May 11, having received no answer from the plaintiff, the panel chairman granted the motion and dismissed the claim. Two days later, the plaintiff filed an answer, to which was attached the required certificate. That was followed, a week later, by a motion for reconsideration of the dismissal. That motion was implicitly denied when the HCAO Director entered an award in favor of the defendants. The plaintiff then filed a complaint in the Circuit Court which, on motion, was dismissed because of the default at...
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