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Medmal Lawsuit Dismissed by Court for Deficient Certificate Must Start Again in Administrative Agency

Thumbnail image for Hospital.jpgWhen a lawsuit alleging medical malpractice is dismissed for failure to comply with one of the requirements -- the certificate of qualified expert -- the procedural requirements of the law governing medical malpractice in Maryland must be met. In this instance, the decision by Maryland's Court of Special Appeals means that a lawsuit where the court found the certificate to be deficient must go all the way back to the administrative agency where such claims must be first be filed, rather than get another filing in trial court.

Medical malpractice claims in Maryland are governed by the Health Care Malpractice Claims Act (HCMCA). Under the HCMCA, medical malpractice claims must first be submitted to arbitration before they are filed in circuit court. In addition, a certificate of qualified expert and report must also be filed. This takes place through an administrative agency, the Health Claims Arbitration Dispute Resolution Office (HCADRO). These requirements are important. Lawsuits have been dismissed for the failure to provide a certificate or a report. In addition, if the certificate is found to be lacking or deficient, the case can get dismissed. The arbitration requirement was put into place because of a perceived crisis in medical malpractice litigation. Lawmakers were persuaded that adding the arbitration and certificate requirements would prevent medical malpractice claims perceived to be weak or bad from clogging the courts.

But, one of the questions in a recent case decided by the appellate court was whether the dismissal of a lawsuit because the trial court had ruled that the certificate was deficient meant that the case should go back to the administrative agency or the courts.

Puppolo v. Adventist Healthcare, Inc. and others, stared with Nancy Puppolo's arrival at Washington Adventist Hospital (WAH) by ambulance in August 2006. Puppolo had had a stroke the night before. She lapsed into a coma and suffered complication that included hospital-acquired bacterial infections before dying sometime later. Puppolo's daughter, Celeste, sued Adventist Healthcare, Inc. and one of the treating doctors, alleging negligence in Mrs. Puppolo's death.

However, Puppolo first filed a claim with HCADRO against WAH and the doctor that included a certificate and report prepared by a neurologist. The parties waived arbitration and Puppolo then filed a complaint in the Circuit Court for Montgomery County, alleging that the healthcare providers breached the standard of care when treating her mother. But, the trial court dismissed the case, determining that the certificate was deficient because it did not identify the licensed professionals at WAH whom she alleged breached the standard of care. The court also eventually granted WAH and the doctor's motions for summary judgment and denied Puppolo's request to correct the deficiencies in the certificate.

Puppolo appealed. The appellate court agreed with the trial court. Puppolo contended that the circuit court had made a mistake in dismissing the complaint against Adventist because she had filed a new civil action in a forum allowed under Maryland law. In Section 5-119 of the section of Maryland dealing with courts and judicial proceedings, if a party's civil action or claim is dismissed without prejudice, the party may commence a new civil action or claim for the same cause against the parties on or before the latter of the explanation of the statute of limitations or 60 days from the date of dismissal.

Puppolo argued that the statute allowed her to resurrect her claim as a new civil action -- allowing a second filing in trial court -- rather than beginning again by going all the back to HCARDO. She argued that the use of the word "or" in the phrase "commence a new civil action or claim for the same cause" meant that a party has a choice between alternatives. Adventist argued that a party does not have the option to circumvent compliance with the other procedural requirements of the HCMCA.

"In our view, Adventist has the better of the arguments," the court responded. Looking at the section of the law -- Section 5-119 of Courts and Judicial Proceedings -- at issue in the case, the court observed that it not specify where a "cured" civil action should be filed, but that Adventist's argument would circumvent the arbitration process.

Puppolo claimed that her second court filing tolled the statute of limitations. WAH argued that HCADRO should address the issue. The court agreed with WAH.

The appellate court also ruled that the trial court had not abused its discretion when it did not allow Puppolo to fix the deficiencies in her identification of the expert witness during the discovery period in the case against WAH. Puppolo did not comply with the scheduling order in identifying the expert, nor did she respond to the motion for summary judgment which was pending for failure to identify an expert and the court noted that this lack of response was "consistent with the history in the case."

Belsky, Weinberg and Horowitz has many years of experience dealing with medical malpractice matters, including the certificate requirement and arbitration. Call us today at 410.234.0100 and let us help you.

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