Powell v. Breslin

• Decision Date: 04 October 2010
• Docket Number: No. 181, Sept. Term, 2009.,181, Sept. Term, 2009.
• Citation: 195 Md.App. 340,6 A.3d 360
• Parties: Ronald L. POWELL, et al. v. R. Jeffrey BRESLIN, et al.
• Court: Court of Special Appeals of Maryland

6 A.3d 360

195 Md.App. 340

Ronald L. POWELL, et al.

v.R. Jeffrey BRESLIN, et al.

No. 181, Sept. Term, 2009.

Court of Special Appeals of Maryland.

Oct. 4, 2010.

David M. Kopstein, Seabrook, MD (Kopstein & Periman, Jay D. Miller, Miller, Murtha & Psoras LLC of Lutherville, on the brief) for appellant.

Edwin L. Keating (E. Philip Franke, Siobhan R. Keenan, Baxter, Baker, Sidle, Conn & Jones PA, on the brief) Baltimore, MD, for appellee.

Panel: ^* DAVIS, KEHOE, J. FREDERICK SHARER (Retired, Specially Assigned), JJ.

J. FREDERICK SHARER, J. (Retired, Specially Assigned).

Appellants, the adult children of decedent, Jackie D. Powell, challenge the February 9, 2007 Amended Order of the Circuit Court for Baltimore City granting summary judgment to appellees, Dr. Jeffrey R. Breslin and Kremen, Breslin & Fraiman, P.A. The circuit court subsequently denied appellants' Motion for Reconsideration by Order of August 10, 2007, and appellants' Motion to Alter or Amend the Judgment Nunc Pro Tunc by Order of March 11, 2008. Appellants noted this timely appeal after the entry of final judgment as to the remaining parties.

Appellants present a single question for our review, which we have slightly rephrased:

In a medical negligence case, does the provision ofMd.Code, Courts and Judicial Proceedings § 3-2A-04(b)(1)(i)(1), requiring dismissal without prejudice if the plaintiff fails to file a certificate of a qualified expert, apply where the plaintiff files a certificate signed by a person who does not meet the qualifications set forth in CJ § 3-2A-02(c)(2)(ii)? ¹

For the reasons set forth below, we shall hold that, in such circumstance, the appropriate sanction is dismissal without prejudice, not summary judgment.

FACTUAL and PROCEDURAL HISTORY

On October 31, 2002, the decedent, Jackie Powell, was admitted to Good Samaritan Hospital to undergo a hepatorenal arterial bypass procedure to be performed by Dr. Breslin. Dr. Monford Wolf administered an epidural anesthetic to Mr. Powell during his surgery. Mr. Powell subsequently developed an epidural hematoma that injured his spinal cord, paralyzing him from the waist down. Appellants allege that Mr. Powell's injury, and the resulting paralysis, eventually led to his death on March 8, 2004. Appellants further allege that the defendant health care providers were negligent in failing to recognize and treat the epidural hematoma in a timely manner.

Appellants initially filed a claim against Dr. Wolf, his professional association, Hunt Valley Anesthesia Associates, P.A., and Good Samaritan Hospital, with the Health Claims Arbitration Office (HCAO)on July 30, 2004.² In conjunction with their claim, appellants also filed a Certificate of Qualified Expert ("certificate") ³ with HCAO and served notice of their intent to waive arbitration pursuant to Md.Code (2006 Repl.Vol.),Courts & Judicial Proceedings ("CJ") § 3-2A-06B. Pursuant to the waiver, the HCAO transferred the case to the Circuit Court for Baltimore City by Order dated September 27, 2004.

On October 20, 2004, appellants filed their initial two-count complaint, asserting a survival claim and a wrongful death action against Dr. Wolf, Hunt Valley Anesthesia Associates, P.A., and Good Samaritan Hospital. Appellants subsequently amended their complaint on November 24, 2004, to add two negligence counts against Good Samaritan. On August 25, 2005, appellants amended their complaint a second time, naming Dr. Breslin and his professional association, Drs. Kremen, Breslin & Fraiman, P.A., as defendants in the case. In conjunction with their Second Amended Complaint, appellants filed a certificate and a report signed by a board certified anesthesiologist, Dr. Ronald E. Burt. Appellants again served notice of their intention to waive arbitration before the HCAO, and jurisdiction over the Amended Complaint was transferred to the circuit court by Order dated August 8, 2005.

After some scheduling difficulties, a deposition of Dr. Burt was finally held on September 6, 2006. Dr. Burt testified that he had no clinical experience in vascular surgery, had never taught in the field of vascular surgery, and did not hold himself out as an expert in vascular surgery. His only professed area of expertise was anesthesiology. He further testified that he was unable to address the applicable standard of care for vascular surgeons, or what training or experience vascular surgeons might have that would be relevant to diagnosing or treating an epidural hematoma.

As a result of those revelations, Dr. Breslin and his professional association filed a Motion to Dismiss or in the alternative for Summary Judgment on October 26, 2006. The circuit court heard oral arguments on the motion from the remaining parties on January 22, 2007.⁴ On January 24, 2007, the courtissued a Memorandum Opinion and Order granting Dr. Breslin's Motion for Summary Judgment.⁵ Appellants filed a Motion to Reconsider on February 5, 2007, arguing that the proper remedy for disqualification of their certificate was dismissal without prejudice, not summary judgment. On August 10, 2007, the court issued an Order summarily denying appellants' Motion.

On October 29, 2007, appellants filed a Motion to Alter or Amend Judgment Nunc Pro Tunc.⁶ The court heard oral argumenton the motion on February 7, 2008, and denied appellants' Motion by a Memorandum of Decision on March 11, 2008.

Upon resolution of all claims in the case through settlement with Dr. Wolf and Hunt Valley Anesthesia Associates, P.A., and their subsequent dismissal from the case, appellants filed the current appeal on March 27, 2009.⁷

STANDARD of REVIEW

This Court reviews a decision of a circuit court granting summary judgment utilizing a de novo standard of review. Harford County v. Saks Fifth Ave. Distrib. Co., 399 Md. 73, 82, 923 A.2d 1 (2007); Zitterbart v. Am. Suzuki Motor Corp., 182 Md.App. 495, 501-02, 958 A.2d 372 (citing Crickenberger v. Hyundai Motor Am., 404 Md. 37, 45, 944 A.2d 1136 (2008)), cert. denied, 406 Md. 581, 961 A.2d 555 (2008). When decidinga motion for summary judgment, a trial court may "enter judgment in favor of or against the moving party if the motion and response show there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law." Md. Rule 2-501(f); see Ross v. State Bd. of Elections, 387 Md. 649, 659, 876 A.2d 692 (2005). Where there is no dispute of material fact, this Court's focus is on whether the trial court's grant of the motion was legally correct. Laing v. Volkswagen of Am., 180 Md.App. 136, 152-53, 949 A.2d 26 (2008). In reviewing the grant of summary judgment, we construe the facts properly before the court, and any reasonable inferences that may be drawn from them, in the light most favorable to the non-moving party, in this case, appellants. Id;Green v. H & R Block, 355 Md. 488, 502, 735 A.2d 1039 (1999).

The parties agree that the primary legal question in this case is one of statutory interpretation. This Court utilizes a de novo standard to analyze questions regarding a circuit court's interpretation of statutory provisions. Maryland-National Capital Park and Planning Comm'n v. Anderson, 395 Md. 172, 181, 909 A.2d 694 (2006); Moore v. State, 388 Md. 446, 452, 879 A.2d 1111 (2005). "Although the factual determinations of the circuit court are afforded significant deference on review, its legal determinations are not." Goss v. C.A.N. Wildlife Trust, Inc., 157 Md.App. 447, 456, 852 A.2d 996 (2004). "Where the order involves an interpretation and application of Maryland statutory and case law, we must determine whether the lower court's conclusions are 'legally correct' under a de novo standard of review." Walter v. Gunter, 367 Md. 386, 392, 788 A.2d 609 (2002).

ANALYSIS

I. THE STATUTORY SCHEME

In Maryland, the procedures for filing and litigating medical malpractice actions are established by the Maryland Healthcare Malpractice Claims Act, codified at Md.Code (1976, 2006 Repl.Vol., 2007 Supp.),§ 3-2A-01 et seq. of the Courts and Judicial Proceedings Article ("CJ") ("the Act"). The Act governs every aspect of medical malpractice claims filed in Maryland. CJ § 3-2A-02(a). The Act requires that all medical malpractice claims for amounts over the statutory limit be submitted to the Maryland Health Care Alternative Dispute Resolution Office (MHCADRO) for an initial assessment before the matter can be submitted to the courts. CJ § 3-2A-04(a). Significantly, any party may waive arbitration any timeafter the filing of a certificate, as they did in this case. CJ § 3-2A-06B. Within the Act are the two statutory provisions we must consider in the present appeal.

Section 3-2A-02 of the Act, entitled "Exclusiveness of Procedures," mandates that the provisions of the Act are the exclusive provisions governing the initiation of malpractice claims in Maryland. Of particular interest in the present appeal is CJ § 3-2A-02(c), providing in pertinent part:

(c) Establishing liability of health care provider; qualifications of persons testifying.-

(1) In any action for damages filed under this subtitle, the health care provider is not liable for the payment of damages unless it is established that the care given by the health care provider is not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action.

(2)(i) This paragraph applies to a claim or action filed on or after January 1, 2005.

(ii) 1. In addition to any other qualifications, a health care provider who attests in a certificate of a qualified expert or testifies in relation to a proceeding before a panel or court concerning a defendant's compliance with or departure from standards of care:

A. Shall have had clinical experience, provided consultation relating to clinical practice, or taught medicine in the

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