Walzer v. Osborne

• Decision Date: 17 November 2006
• Docket Number: No. 20, September Term, 2006.,20, September Term, 2006.
• Citation: 911 A.2d 427,395 Md. 563
• Parties: Clifford S. WALZER, et al. v. Keith J. OSBORNE.
• Court: Court of Special Appeals of Maryland

Page 427

911 A.2d 427

395 Md. 563

Clifford S. WALZER, et al. v. Keith J. OSBORNE.

No. 20, September Term, 2006.

Court of Appeals of Maryland.

November 17, 2006.

Reconsideration Denied December 14, 2006.

COPYRIGHT MATERIAL OMITTED

Joan F. Brault (Stuart N. Herschfeld, Brault, Graham, LLC, on brief), Rockville, for petitioners.

Jonathan A. Hodgson, Annapolis, for respondent.

David M. Kopstein, Seabrook, amicus curiae of Maryland Trial Lawyers Assn.

Argued before BELL, RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA, and GREENE, JJ.

GREENE, J.

In this case, we must determine whether, under Md.Code (1974, 2002 Repl.Vol., 2006 Cum.Supp.), § 3-2A-04(b) of the Courts & Judicial Proceedings Article, known commonly as the Health Care Malpractice Claims Statute ("Statute"), a court must dismiss a medical malpractice claim when a medical malpractice claimant files a certificate of qualified expert without an attesting expert report attached thereto. In dispute is whether the attesting expert report must be attached to the certificate of qualified expert, or whether it is merely suggestive that the report be attached. In addition, there is a dispute as to the sanction for failure to attach the report: specifically, whether § 3-2A-04(b) requires dismissal of the claim. We shall hold that the language of § 3-2A-04(b) mandates that the certificate of qualified expert be complete, with an attesting expert report attached, and that dismissal of the claim without prejudice is the appropriate remedy when the claimant fails to attach the report in a timely manner. Thus, the trial court's interpretation of the Statute was correct and, accordingly, we shall reverse the judgment of the Court of Special Appeals.

FACTUAL BACKGROUND

Keith J. Osborne ("Respondent") sought treatment from Clifford S. Walzer, D.M.D., of Walzer & Sullivan, D.D.S., P.C. ("Petitioners"),¹ for a broken jaw and related injuries in August and September of 2000.² On August 27, 2003, Respondent initiated proceedings against Petitioners by filing a Statement of Claim with the Health Care Alternative Dispute Resolution Office ("Health Care Office")³ of Maryland, alleging that Dr. Walzer was negligent in his treatment of Respondent. Respondent claimed that Dr. Walzer's treatment fell below the standard of care and, as a result of the treatment, Respondent's jaw was left permanently disfigured. On November 25, 2003, Respondent filed a certificate of qualified expert, executed by James S. Elmore, D.M.D., which provided that:

I HEREBY CERTIFY that I am a doctor of dentistry, currently licensed to practice in the State of Pennsylvania, and that I do not devote annually more than twenty percent (20%) of my professional activities to the activities that directly involve testimony in personal injury claims. Further, I am a Board Certified Diplomat of the American Board of Oral-Maxillofacial Surgery.

* * *

Based on my training, expertise and review of the records, it is my opinion that there were deviations from the standards of care and said deviations were the proximate result of Claimant Keith Osbourne's injury.

Respondent failed to attach to the certificate of qualified expert, an attesting expert report, as is required by § 3-2A-04(b)(3). After some discovery, Petitioners filed a waiver of arbitration.

On May 26, 2004, Respondent filed a complaint in the Circuit Court for Anne Arundel County. On June 17, 2004, the Petitioners filed an answer. On September 22, 2004, Petitioners filed a "Motion to Strike Respondent's Certificate and to Dismiss, or, in the alternative, for Summary Judgment." Respondent filed a response to the motion on October 29, 2004, to which he then attached an attesting expert report. The Circuit Court heard the case on December 15, 2004, and granted Petitioners' motion on the grounds that the attesting expert report was not attached to the certificate of qualified expert as required by Maryland law. The Circuit Court thereafter signed an Order of Dismissal without prejudice. Respondent filed a Notice of Appeal in the Court of Special Appeals on January 10, 2005.

On March 1, 2006, the Court of Special Appeals filed its reported opinion, Osborne v. Walzer, 167 Md.App. 460, 893 A.2d 654 (2006), holding that the language of the Statute does not require a court to dismiss a case when a claimant fails to attach an attesting expert report to the certificate of qualified expert. That court held that dismissal is appropriate only upon a showing that Petitioners suffered some prejudice, which it decided was not the case here. Petitioners filed a petition for writ of certiorari⁴ in this Court, which we granted. Walzer v. Osborne, 393 Md. 242, 900 A.2d 749 (2006). For the reasons stated in this opinion, we reverse the judgment of the Court of Special Appeals and direct that the intermediate appellate court reinstate the judgment of the Circuit Court for Anne Arundel County.

DISCUSSION

The parties dispute whether, under § 3-2A-04(b) of the Courts & Judicial Proceedings Article, the Statute requires a court to dismiss a medical malpractice action when a claimant fails to attach, in a timely manner, the required attesting expert report to the certificate of qualified expert. Section 3-2A-04(b) provides, in relevant part:

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

(1)(i) 1. Except as provided in subparagraph (ii) of this paragraph, a claim or action filed after July 1, 1986, shall be dismissed, without prejudice,

if the claimant or plaintiff fails to file a certificate of a qualified expert with the Director⁵ 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;

* * *

(3)(i) The attorney representing each party, or the party proceeding pro se, shall file the appropriate certificate with a report of the attesting expert attached.

(Emphasis added.)

In addition, the parties dispute whether § 3-2A-04(b) requires a claimant to attach an attesting expert report to a certificate of qualified expert in a medical malpractice action, or whether that section merely suggests that claimants do so. The parties, the trial court, and the intermediate appellate court disagree, as to the sanction imposed for failure to attach an attesting expert report to a certificate of qualified expert. Respondent argues that the attachment requirement is not mandatory. Respondent and the intermediate appellate court's position is that the language of § 3-2A-04(b) does not mandate dismissal of a medical malpractice action for failure to attach the attesting expert report, but that, instead, the sanction is left to the discretion of the court and should be less harsh than dismissal. Petitioners and the Circuit Court disagree, contending that the language of the statute clearly mandates attachment of the attesting expert report and dismissal of the claim when the claimant fails to attach the attesting expert report as Respondent failed to do so in this case.

A. Statutory Construction

We must first determine whether the Legislature intended dismissal of a complaint where the certificate of qualified expert did not include an attached expert report of the attesting physician. "The cardinal rule of statutory construction is to ascertain and effectuate the intent of the Legislature." Mayor and Town Council of Oakland v. Mayor and Town Council of Mountain Lake Park, 392 Md. 301, 316, 896 A.2d 1036, 1045 (2006); Chow v. State, 393 Md. 431, 443, 903 A.2d 388, 395 (2006) (citations omitted); see also Johnson v. Mayor of Balt. City, 387 Md. 1, 11, 874 A.2d 439, 445 (2005); Moore v. State, 388 Md. 446, 452, 879 A.2d 1111, 1114 (2005); O'Connor v. Balt. County, 382 Md. 102, 113, 854 A.2d 1191, 1198 (2004); Mayor & City Council of Baltimore v. Chase, 360 Md. 121, 128, 756 A.2d 987, 991 (2000).

As this Court has explained, "[t]o determine that purpose or policy, we look first to the language of the statute, giving it its natural and ordinary meaning." State Dept. of Assessments and Taxation v. Maryland-Nat'l Capital Park & Planning Comm'n, 348 Md. 2, 13, 702 A.2d 690, 696 (1997); Montgomery County v. Buckman, 333 Md. 516, 523, 636 A.2d 448, 452 (1994); see also Chow, 393 Md. at 443, 903 A.2d at 395 (stating that "[s]tatutory construction begins with the plain language of the statute, and ordinary, popular understanding of the English language dictates interpretation of its terminology") (citations omitted). We do so "on the tacit theory that the Legislature is presumed to have meant what it said and said what it meant." Witte v. Azarian, 369 Md. 518, 525, 801 A.2d 160, 165 (2002). "When the statutory language is clear, we need not look beyond the statutory language to determine the Legislature's intent." Marriott Employees Fed. Credit Union v. MVA, 346 Md. 437, 445, 697 A.2d 455, 458 (1997). "If the words of the statute, construed according to their common and everyday meaning, are clear and unambiguous and express a plain meaning, we will give effect to the statute as it is written." Jones v. State, 336 Md. 255, 261, 647 A.2d 1204, 1206-07 (1994). In addition, "[w]e neither add nor delete words to a clear and unambiguous statute to give it a meaning not reflected by the words the Legislature used or engage in forced or subtle interpretation in an attempt to extend or limit the statute's meaning." Taylor v. NationsBank, N.A., 365 Md. 166, 181, 776 A.2d 645, 654 (2001); see Chow, 393 Md. at 443, 903 A.2d at 395. "`If there is no ambiguity in th[e] language, either inherently or by reference to other relevant laws or circumstances, the inquiry as to legislative intent ends....'" Chow, 393 Md. at 443-44, 903 A.2d at 395.

If the language of the statute is ambiguous, however, then "courts consider not only the literal or usual meaning of the words, but their meaning and effect in...