Witte v. Azarian

• Decision Date: 18 June 2002
• Docket Number: No. 103,103
• Citation: 369 Md. 518,801 A.2d 160
• Parties: Jeffrey F. WITTE, v. Elizabeth AZARIAN, et vir.
• Court: Maryland Court of Appeals

801 A.2d 160

369 Md. 518

Jeffrey F. WITTE, v. Elizabeth AZARIAN, et vir.

No. 103, Sept. Term, 2001.

Court of Appeals of Maryland.

June 18, 2002.

H. Kenneth Armstrong (Armstrong, Donohue, Ceppos & Vaughan, Chartered, on brief), Rockville; Erwin R. Jansen, Jr., Rockville (pro hac vice), for petitioner.

Barry J. Rosenthal (Malcolm P. Herman of Bromberg, Rosenthal, Siegel & Goodman, on brief), Rockville, for respondents.

David M. Kopstein, Dross, Levenstein, Perilman & Kopstein, Seabrook, brief of the Maryland Trial Lawyers Ass'n filed on behalf of respondents, amicus curiae.

Argued before BELL, C.J., ELDRIDGE, WILNER, CATHELL, HARRELL, BATTAGLIA and LAWRENCE F. RODOWSKY (specially assigned), JJ. WILNER, Judge.

At issue before us is the proper construction of Maryland Code, § 3-2A-04(b)(4) of the Courts and Judicial Proceedings Article, which is part of the law dealing with the resolution of health care malpractice claims. Section 3-2A-04 requires that such claims, if seeking compensation in an amount that exceeds the jurisdiction of the District Court, be filed initially with the Health Claims Arbitration Office (HCAO).

In 1986, the General Assembly amended the law to require that unless, within 90 days after the filing of the claim, the claimant files with the HCAO a certificate of a qualified expert attesting that the defendant's conduct constituted a departure from the standard of care and that the departure was the proximate cause of the alleged injury, the claim must be dismissed with prejudice. In the same Act, and with the apparent intention of limiting the class of experts who may issue such a certificate, the Legislature, in § 3-2A-04(b)(4), provided that "[t]he attesting expert may not devote annually more than 20 percent of the expert's professional activities to activities that directly involve testimony in personal injury claims." We need to determine what kinds of activities are to be counted in calculating the 20%.

BACKGROUND

In May, 1998, respondents Elizabeth and Mark Azarian filed a claim with the HCAO alleging negligence on the part of petitioner, Dr. Jeffrey Witte, in his medical treatment of Ms. Azarian's fractured ankle. Within the time allowed by the statute, the Azarians filed a certificate of Dr. Lawrence Honick attesting that (1) he was a licensed health care provider specializing in orthopedics, (2) less than 20% of his professional activities were devoted annually to activities that directly involved testimony in personal injury claims, (3) he had reviewed the records relating to medical treatment rendered to Ms. Azarian by Dr. Witte, and (4) the care and treatment rendered to her by Dr. Witte failed to comply with the standards of care and that failure was the proximate cause of the permanent injury to her left leg. Contemporaneously with the filing of that certificate, the Azarians waived arbitration pursuant to § 3-2A-06B, and, as a result, the case was transferred to the Circuit Court for Montgomery County, where they filed a complaint against Dr. Witte.

In April, 1999, defense counsel deposed Dr. Honick, who was then the Azarians' sole identified medical expert on the issues of breach of care and proximate causation. Honick admitted that he had given up performing surgery about eleven years earlier, that, although he had "courtesy" privileges at two hospitals, he did not admit patients there, and that about 90% of his patients "have some sort of litigation involved in addition to their medical claims." He added that "[m]any of these are workers' compensation" cases and that "[m]ost of them, to my knowledge, don't even go to the lawsuit." Upon further examination, he said that "a very small percent" of his work week was spent in testimony or review of records in medical malpractice cases, that he either appeared in court or attended a deposition about once a month, but that about 60% of his patients came from referrals from attorneys or workers' compensation insurance carriers.

Following that deposition, Witte filed a combined motion in limine and for summary judgment, the basis of which was that (1) in order to prevail, the Azarians were required to produce expert medical evidence that Witte departed from the applicable standard of care, (2) the only expert witness identified by the Azarians who could give such evidence was Dr. Honick, but (3) because Honick devoted more than 20% of his professional activities to activities that directly involved testimony, he was not qualified. Witte asked that the court bar Honick's testimony and, in the absence of any other expert evidence as to standard of care, breach, and causation, enter summary judgment in his favor. The court denied the motion, and trial commenced, before a different judge and a jury, in February, 2000.

On the third day of trial, after five other witnesses had testified, Dr. Honick was called. On voir dire examination, he iterated that his practice was entirely an office practice and that he no longer performed surgery. He said that he saw about 100 patients a week and that 75% to 80% of them were involved in some kind of injury. He acknowledged that 50% to 60% of his patients were referred by lawyers, that about half of those referrals were for evaluations only with no treatment involved, that he appeared at depositions between 300 and 400 times over a 30-year period, that he previously testified in another case that a "major percentage" of his income related solely to "forensic" matters, which included workers' compensation, personal injury, and medical malpractice cases, and that 12 to 14 years ago he had placed one advertisement that he provided guidance, strategy, and planning in the development of medical aspects of cases.

Defense counsel took those admissions as evidence that Honick devoted more than 20% of his professional activity to activities directly involving testimony and renewed his motion (1) to preclude Honick from testifying, and (2) given that Honick was the physician who provided the statutorily required certificate, to dismiss the action. Although expressing the view that, when applied to a non-treating physician, the term "directly involve," as used in § 3-2A-04(b)(4), was not limited just to testimony but included as well the examination of patients, preparing for depositions, writing reports, and reviewing records, the court reserved ruling on the motion and allowed additional voir dire examination. That examination produced further admissions that about 30% to 40% of Dr. Honick's practice involved performing independent medical examinations and evaluations upon referrals from attorneys, workers' compensation carriers, or other insurance carriers and that, as part of his work, he prepared a report to the referring attorney or carrier summarizing his findings and opinions. In most instances, he said, his report was sufficient but that occasionally he discussed his report with the attorney or adjuster. Dr. Honick said that, in terms of time, as opposed to percentages of patients, about 75% of his time was spent treating patients and the rest was spent on evaluations.

In making its ultimate ruling, the court construed the statute as encompassing "activities that lead to testimony in personal injury claims, or could lead to testimony in personal injury claims." (Emphasis added). It made clear that the test was not "whether it actually leads to personal injury claim testimony," but rather whether "it could lead to it." Using that standard, the court treated as activities directly involving testimony "the actual testimony, the testimony preparation, the review of records, the preparation of reports, and all other forensic activity ... [w]hether or not it results in testimony." On the evidence presented, the court found that "25 percent of Dr. Honick's time is devoted to the specific kind of activities which under [§ 3-2A-04(b)(4) ] cannot exceed 20 percent. That is, the professional activities that directly involve testimony in personal injury claims." Upon that finding, the court concluded that the certificate was invalid and that, as a valid certificate is a condition precedent to the prosecution of a medical malpractice claim, the claim could not proceed. The court therefore granted what it regarded as a renewed motion for summary judgment and entered judgment in favor of Witte.

Rejecting the trial court's "expansive construction of the phrase `directly involve testimony,'" the Court of Special Appeals reversed and remanded the case for further proceedings. Azarian v. Witte, 140 Md.App. 70, 99, 101-02, 779 A.2d 1043, 1059, 1061 (2001). The intermediate appellate court determined, both on an analysis of legislative intent and because the statute served to restrict a common law action, that a narrower construction was appropriate. Most medical evaluations, even those requested by lawyers or insurance companies, it noted, "are performed with little or no expectation that testimony will ever be required." Id. at 101, 779 A.2d at 1060. "[O]nly when a medical examination is performed in preparation for testifying," the court declared, does the evaluation constitute activity that directly involves testimony, and only those activities "which are principally performed to prepare for or engage in testifying" are within the ambit of the 20% limitation. Id.

The court defined the category as including, in addition to actual testimony, "meetings, telephone conferences, the review of documents, the preparation of reports and other measures performed principally to prepare for or, as in the case of affidavits, in place of testifying as well as travel to and attendance at trial or depositions." Id. It made clear, however, that actual testimony is not a prerequisite for "the preparatory activities to fall within the purview of the 20 percent limitation." Id. On that standard, it held that the evidence did not support the trial court's conclusion that Dr. Honick violated the statutory...