Roth v. Dimensions Health Corp.

• Decision Date: 01 September 1993
• Docket Number: No. 7,7
• Parties: Aaron ROTH v. DIMENSIONS HEALTH CORPORATION et al. Misc.,
• Court: Maryland Court of Appeals

Page 627

332 Md. 627

632 A.2d 1170

Aaron ROTH v. DIMENSIONS HEALTH CORPORATION et al.

Misc. No. 7, Sept. Term, 1993.

Court of Appeals of Maryland.

Nov. 15, 1993.

Robert R. Michael (Shadoan and Michael, on brief), Rockville, for appellant.

Jeffrey L. Harding (Sasscer, Clagett & Bucher, on brief), Upper Marlboro, for appellees.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI, and ROBERT M. BELL, JJ.

CHASANOW, Judge.

This certified question arises from a medical malpractice claim filed by the Plaintiff, Aaron Roth, in the Health Claims Arbitration Office. At the time of the claim, Maryland Code (1974, 1984 Repl.Vol., 1987 Cum.Supp.), Courts & Judicial Proceedings Article, § 3-2A-04(b) ¹ required that a claimant file a certificate of a qualified expert ² attesting that the injury was the result of a departure from the standard of care. The certificate had to be filed within 90 days of filing the original complaint or the claim would be dismissed. Roth failed to file the certificate within the prescribed period and the Defendants moved to dismiss his claim. While the Motions to Dismiss were still pending, Chapter 688 of the Laws of Maryland amended § 3-2A-04(b)(1) to provide that, where, as in the instant case, limitations have run after the filing and where the failure to file a certificate of a qualified expert was not willful or the result of gross negligence, in lieu of dismissal the panel chair shall grant an extension of no more than 90 days for filing the required certificate. See Ch. 688 of the Acts of 1989.

The following question was certified to this Court by the United States Court of Appeals for the Fourth Circuit:

"Whether the July 1, 1989 amendment to section 3-2A-04(b)(1) of the Act, 1989 Md.Laws Ch. 688, applies retroactively to claims filed and pending before the Maryland Health Claims Arbitration Office (the Arbitration Office) at the time of the amendment, specifically the claim filed in this case on November 19, 1988, or only prospectively, thus applying only to claims filed after July 1, 1989."

I. Facts

On November 19, 1988, Aaron Roth filed a medical malpractice claim against Dimensions Health Corporation, and Drs. Joseph J. Colella, Jr., Benjamin Slivko, Peter M. Jamieson, and Gabriel B. Jaffe. The claim filed in the Health Claims Arbitration Office alleged negligence on the part of the above-named Defendants for (i) failure to properly diagnose and treat Roth's medical condition, (ii) failure to properly administer and monitor medications, and (iii) failure to properly monitor and review Roth's medical chart. Roth was allegedly rendered totally deaf as a result of over-medication with amikacin, a drug used to combat an infection, administered to him on or about November 20, 1985.

Roth was required to file a certificate of a qualified expert within 90 days after the November 19, 1988 filing of his complaint. Md.Code (1974, 1984 Repl.Vol., 1987 Cum.Supp.) Cts. & Jud.Proc. Art., § 3-2A-04(b). Roth did not ask for an extension nor did he file the certificate until April 4, 1989. The health care providers then filed Motions to Dismiss based on Roth's late filing of the certificate. While these motions were still pending, the Maryland General Assembly amended § 3-2A-04(b)(1) to include the following:

"(ii) In lieu of dismissing the claim, the panel chairman shall grant an extension of no more than 90 days for filing the certificate required by this paragraph, 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."

Section 3-2A-04(b)(1)(ii) (codifying Ch. 688 of the Acts of 1989). Section 3 of Chapter 688 provides that "this Act shall take effect July 1, 1989." The Defendant health care providers conceded that the failure to file was not willful nor the result of gross negligence and that the statute of limitations expired. They contended, however, that amended § 3-2A-04(b)(1) only applies prospectively and is not applicable to this case. The hearing on the Motions to Dismiss was held September 11, 1989, subsequent to the effective date of the new Act.

Over eight months later, on May 29, 1990, the panel chairman filed a Memorandum Opinion and Order with the Health Claims Arbitration Office which granted Defendants' Motions to Dismiss. Roth filed a Petition and Motion to Vacate the Arbitration Award in the United States District Court for the District of Maryland, and on September 9, 1991, the District Court denied Roth's Motion to Vacate the Arbitration Award and granted Defendants' Motions to Dismiss based on essentially the same grounds as the panel chairman's decision. Thereafter, Roth timely filed an appeal to the United States Court of Appeals for the Fourth Circuit. Upon Roth's written motion, and after oral argument, the Court of Appeals for the Fourth Circuit certified its question to this Court.

II. Interpretation of Statutory Language and Legislative History

Prior to its amendment in 1989, § 3-2A-04(b)(1) of the Courts & Judicial Proceedings Article provided as follows:

"(b) Filing of certificate of qualified expert.--Unless the sole issue in the claim is lack of informed consent:

(1) A claim filed after July 1, 1986, shall be dismissed, without prejudice, if the claimant fails to file a certificate of a qualified expert with the Director attesting to departure from standards of care, and that the departure from standards of care is the proximate cause of the alleged injury, within 90 days from the date of the complaint."

Md.Code (1974, 1984 Repl.Vol., 1987 Cum.Supp.), Cts. & Jud.Proc. Art., § 3-2A-04(b). Effective July 1, 1989, Chapter 688 of the Laws of Maryland amended § 3-2A-04(b)(1) to add the following underlined language:

"(b) Unless the sole issue in the claim is lack of informed consent:

(1) [ADDED: (I) EXCEPT AS PROVIDED IN SUBPARAGRAPH (II) OF THIS PARAGRAPH, A] claim filed after July 1, 1986, [ADDED: SHALL] be dismissed, without prejudice, if the claimant fails to file a certificate of a qualified expert with the Director attesting to departure from standards of care, and that the departure from standards of care is the proximate cause of the alleged injury, within 90 days from the date of the complaint.

* * *

[ADDED: (II) IN LIEU OF DISMISSING THE CLAIM, THE PANEL CHAIRMAN SHALL GRANT AN EXTENSION OF NO MORE THAN 90 DAYS FOR FILING THE CERTIFICATE REQUIRED BY THIS PARAGRAPH, IF:]

[ADDED: 1. THE LIMITATIONS PERIOD APPLICABLE TO THE CLAIM HAS EXPIRED; AND]

[ADDED: 2. THE FAILURE TO FILE THE CERTIFICATE WAS NEITHER WILLFUL NOR THE RESULT OF GROSS NEGLIGENCE.] " (Emphasis in original).

Ch. 688 of the Acts of 1989 (codified at Md.Code (1974, 1989 Repl.Vol.), Cts. & Jud.Proc. Art., § 3-2A-04(b)).

This amendment to § 3-2A-04(b)(1) was enacted to rectify what was perceived as a harsh result of the interpretation of that statute in Robinson v. Pleet, 76 Md.App. 173, 544 A.2d 1, cert. denied, 313 Md. 689, 548 A.2d 128 (1988). See McCready Memorial Hosp. v. Hauser, 330 Md. 497, 506-08, 624 A.2d 1249, 1253-54 (1993) (discussing the General Assembly's response to Robinson). As explained in McCready, the Court of Special Appeals in Robinson construed § 3-2A-04(b)(1) as "mandating that a panel chair dismiss a claim for failing to file a timely expert's certificate, [within 90 days,] without first giving the claimant an opportunity to rectify the defect." McCready, 330 Md. at 506, 624 A.2d at 1254. This Court acknowledged that "[t]his result was potentially harsh where the statute of limitations had run because such claimants were time barred from refiling their claims, despite the fact that the claims may have been meritorious and timely when filed." Id. See Robinson, 76 Md.App. at 182-83, 544 A.2d at 5-6.

Had Roth's claim been filed after the effective date of the amendment, he would have been entitled to a 90-day extension to file the certificate and his certificate would have been timely filed within the 90-day extension period. See McCready, 330 Md. at 507-08, 624 A.2d at 1254-55. Roth's claim arose from allegedly negligent health care he received from the Defendants on November 20, 1985. His original claim was filed on November 19, 1988, before the statute of limitations expired. ³ If the dismissal of the claim is upheld Roth would seem to be time barred from refiling it. Since the expert's certificate was filed within the 90-day extension period and the delay was not the result of gross negligence, dismissal of the claim would be exactly the type of "harsh" result the amendment to § 3-2A-04 intended to correct.

In order to ascertain the legislative intent as to the retroactivity of § 3-2A-04(b)(1), we must begin with the section's plain language. Chapter 688 amends several subsections of § 3-2A-04. The amendment to § 3-2A-04(b)(1)(i) pertains to the requirement that a claimant file a certificate of a qualified expert and is included in the portion of the statute which provides that it shall apply to "a claim filed after July 1, 1986." On the other hand, another amendment contained in that legislation adds § 3-2A-04(b)(7); ⁴ it provides a different effective date:

"(7) FOR PURPOSES OF THE CERTIFICATION REQUIREMENTS OF THIS SUBSECTION [ADDED: FOR ANY CLAIM FILED ON OR AFTER JULY 1, 1989]:

(I) A PARTY MAY NOT SERVE AS A PARTY'S EXPERT; AND

(II) THE CERTIFICATE MAY NOT BE SIGNED BY:

1. A PARTY;

2. AN EMPLOYEE OR PARTNER OF A PARTY; OR

3. AN EMPLOYEE OR STOCKHOLDER OF ANY PROFESSIONAL CORPORATION OF WHICH

THE PARTY IS A STOCKHOLDER." (Emphasis in original).

Ch. 688 of the Acts of 1989. Subsection (b)(1) would seem to be intended to apply retrospectively, giving the 90-day extension to claims which were filed after July 1, 1986 and are still pending. On the other hand, the General Assembly clearly intended the prospective application of subsection (b)(7) from July 1, 1989. The purpose of this...