Watts v. King

• Decision Date: 28 March 2002
• Docket Number: No. 2236,2236
• Citation: 794 A.2d 723,143 Md. App. 293
• Parties: Richard WATTS, et al. v. Michael KING.
• Court: Court of Special Appeals of Maryland

794 A.2d 723

143 Md. App. 293

Richard WATTS, et al. v. Michael KING.

No. 2236, Sept. Term, 2000.

Court of Special Appeals of Maryland.

March 28, 2002.

Amy Leete Leone (D. Elizabeth Walker and McCarthy, Wilson & Ethridge, on the brief), Rockville, for appellants.

Nigel L. Scott (Scott & Yallery-Arthur, on the brief), Washington, D.C., for appellee.

JAMES R. EYLER, KENNEY, and BLOOM, THEODORE G. (Retired, specially assigned), JJ.

KENNEY, J.

This case involves a dental malpractice action filed against appellants, Dr. Richard Watts and Watts Dental Associates, P.C., by appellee, Michael King. Appellants challenge the Circuit Court for Prince George's County's denial of their motion to dismiss. Appellants present the following questions for our review:¹

1. If a dental malpractice claim is dismissed by the HCAO [Maryland Health Claims Arbitration Office] for failure to file a satisfactory certificate of qualified expert, has that claim been "arbitrated" as required by the Health Care Malpractice Claims Act?

2. Did the circuit court err in refusing to dismiss plaintiff's dental malpractice and "emotional distress" claims when those claims were never arbitrated in the HCAO?

We conclude that we have jurisdiction to address the fundamental issues in this case and shall reverse.

Factual and Procedural Background

Richard Watts, a dentist licensed to practice in Maryland, operates Watts Dental Associates, P.C., a professional corporation doing business in Maryland. On June 23, 1994, Michael King visited appellants for dental care. Appellants performed dental services on King, including the injection of local anesthesia in the four quadrants of King's mouth.

After the procedure, King experienced prolonged numbness and tingling in his face and was told by appellants to use a gentler toothpaste or to gargle with hot salt water. These remedies were unsuccessful. King suffered severe and permanent injuries, including paresthesia² and paralysis³ of his mouth, lips, and tongue. King alleges that at no point prior to the administration of the local anesthesia did appellants provide any information as to the potential risks associated with the procedure. He claims that appellants only informed him of the possibility of temporary numbness lasting one to three hours.

On June 23, 1997, King filed a two-count malpractice claim with the Maryland Health Claims Arbitration Office ("HCAO")⁴ against appellants, alleging appellants' failure to properly administer the anesthesia and their failure to obtain King's informed consent regarding the dental procedure and the associated risks. On January 26, 1999, HCAO entered an order granting King until February 26, 1999, to secure new counsel and file a new certificate attesting to appellants' deviation from the standards of care.⁵ The order stated that, if King did not obtain new counsel and file a new certificate by that date, it would dismiss his claim.⁶ King failed to file the certificate, and, on April 1, 1999, appellants filed a motion to dismiss and a motion for summary judgment. On or about April 20, 1999, King designated Dr. Walter R. Talbott as his expert and submitted the new certificate.⁷

Dr. Talbott's certificate reads:

I, WALTER R. TALBOTT, D.D.S., do hereby state and certify that I am a licensed dentist and I am competent to testify concerning accepted and recognized standards of dental care.

I have reviewed the dental records and other materials and available films concerning the care and treatment of Michael King by Dr. Richard Watts, D.D.S. and Watts Dental Associates and do hereby state and attest that in my professional opinion that Michael King suffered an injury to his upper right dental nerve during the course of treatment by Dr. Richard Watts, D.D.S. and Watts Dental Associates. Examination reveals that Mr. King continues to suffer from after effects, including pain and numbness on the right of side [sic] of his face and upper jaw, as a result of his treatment by Dr. Richard Watts and Watts Dental Service. According to Mr. King this pain and numbness did not exist prior to treatment by Dr. Richard Watts, D.D.S. and Watts Dental Associates. Mr. King's injuries resulted solely from and as a result of the services performed by Dr. Richard Watts, D.D.S. and Watts Dental Associates.

I further state that I do not annually devote more than 20% of my professional activities to activities that directly involve testimony in personal injury claims.

I have prepared a report which is attached hereto and incorporated by reference. (See Exhibit A).

The certificate makes no reference to a deviation from the standards of care that is the proximate cause of King's injuries. At Dr. Talbott's deposition, he asserted that Dr. Watts did not deviate from the standards of care.⁸ The following exchange took place between Dr. Talbott and appellants' counsel:

[APPELLANTS' COUNSEL]: [D]o you have an opinion ... within a reasonable medical probability that Dr. Watt's [sic] care of Mr. King deviated from the standard of care?

[DR. TALBOTT]: I don't think it did,....

...

[APPELLANTS' COUNSEL]: So as you sit here today, you cannot say that Dr. Watts' care of Mr. King in any way deviated from the standard of care; is that right?

[DR. TALBOTT]: Just based on what Mr. King told me, I didn't find anything that was a deviation, I just found the injury that was the result of being numb by probably competent well prepared dentists.

...

[APPELLANTS' COUNSEL]: And you cannot say that a deviation from the standard of care caused the injury to the nerve?

[DR. TALBOTT]: That's correct.

On or about January 31, 2000, King received a final memorandum and order from the HCAO Panel Chairperson, granting summary judgment in favor of appellants on both counts of his complaint, granting appellants' motion to dismiss the malpractice claim, and entering judgment in favor of appellants.⁹ The HCAO Panel Chairperson found that the expert's certificate failed to attest to the deviation from the standards of care, pursuant to the Health Care Malpractice Claims Act ("the Act:"). In addition, the Panel Chairperson found that King failed to offer evidence to prove that he would have withheld his consent upon full disclosure of the possible consequences based on the objective "reasonable person" standard.

On February 25, 2000, King filed two pleadings in the circuit court: (1) a Complaint to Nullify Panel's Award; and (2) a Notice of Rejection of Arbitration Award.¹⁰ The complaint alleged medical malpractice, lack of informed consent, and emotional distress causes of action. Appellants responded by filing a motion to dismiss King's claims for malpractice and emotional distress.¹¹ They argued that King's claims had never been arbitrated by the HCAO, as required by the Act. CJ § 3-2A-02. The court, without a hearing, denied the motion to dismiss on October 4, 2000.

On November 13, 2000, appellants filed this appeal, which on April 10, 2001, we dismissed as premature, without prejudice to their right to timely note an appeal from an adverse final judgment or from an otherwise appealable judgment. Appellants then filed a motion to reconsider. On August 3, 2001, we reinstated this appeal.

Discussion

I. Interlocutory Appeal

King contends that there has been no final and appealable judgment issued by the court, and thus, this appeal is not ripe for adjudication. Appellants argue that the circuit court's denial of their motion to dismiss, although an interlocutory decision, is immediately appealable because, in denying it, the court exceeded its jurisdiction. They state that initial jurisdiction over medical malpractice claims lies with HCAO pursuant to CJ § 3-2A-02 and that this case was not arbitrated by the HCAO. Therefore, the circuit court's denial of appellants' motion to dismiss King's dental malpractice and emotional distress claims was in error. King argues that the claim was arbitrated before the HCAO and that his filing of a petition for judicial review in the circuit court was proper.

Maryland Rule 2-602(a) provides:

(a) Generally. Except as provided in section (b) of this Rule, an order or other form of decision, however designated, that adjudicates fewer than all of the claims in an action (whether raised by original claim, counterclaim, cross-claim, or third-party claim), or that adjudicates less than an entire claim, or that adjudicates the rights and liabilities of fewer than all the parties to the action:

(1) is not a final judgment;

(2) does not terminate the action as to any of the claims or any of the parties; and

(3) is subject to revision at any time before the entry of a judgment that adjudicates all of the claims by and against all of the parties.

(b) When allowed. If the court expressly determines in a written order that there is no just reason for delay, it may direct in the order the entry of a final judgment:

(1) as to one or more but fewer than all of the claims or parties; or

(2) pursuant to Rule 2-501(e)(3), for some but less than all of the amount requested in a claim seeking money relief only.

The general rule is that an interlocutory order or decision is not immediately appealable, but may be reviewed on appeal from a final judgment. Rule 8-202(a); Rohrbeck v. Rohrbeck, 318 Md. 28, 41, 566 A.2d 767 (1989). The reason for the rule is sound; it prevents repeated and piecemeal appeals and the protraction of litigation for indefinite periods. Tharp v. Disabled Am. Veterans Dep't, 121 Md.App. 548, 564, 710 A.2d 378 (1998).

In discussing final judgments, the Court of Appeals has noted:

If a ruling of the court is to constitute a final judgment, it must have at least three attributes: (1) it must be intended by the court as an unqualified, final disposition of the matter in controversy, (2) unless the court properly acts pursuant to Md. Rule 2-602(b), it must adjudicate or complete the adjudication of all claims against all parties, and (3) the clerk must make a proper record of

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