Court Holds Dismissal Without Prejudice and Not Summary Judgment is Appropriate Remedy for Deficient Certificate of Qualified Expert
The Maryland Court of Special appeals on Tuesday reversed a Baltimore City trial judge’s entry of summary judgment against several medical malpractice plaintiffs after determining the appropriate remedy for a defective certificate of qualified expert is dismissal and not summary judgment. In Powell v. Breslin (No. 181, Sept. Term 2009), the appellate court ruled that the intent of the legislature was to require dismissal without prejudice in such circumstances, even though the specific statutory provision setting forth the criteria for a valid expert certificate did not expressly provide the remedy of dismissal for certificate deficiencies.
The case involved wrongful death and survival claims brought against a vascular surgeon, an anesthesiologist, the physicians’ groups, and Good Samaritan Hospital. The lawsuit alleged the anesthesiologist was negligent in either improperly administering an epidural anesthetic or that the anesthesiologist and vascular surgeon were negligent in failing to take action to avoid the progression of a spinal hematoma which ultimately lead to the patient’s death. The Statement of Claims was amended twice, the second of which added as a defendant the vascular surgeon who performed the surgery for which the epidural anesthesia was administered. At that time, plaintiffs’ counsel refiled a Certificate of Qualified Expert signed by an anesthesiologist attesting that the vascular surgeon deviated from standards of care and proximately caused the decedent’s injury and death.
The anesthesiology expert was deposed and testified that he wasn’t familiar with the standards of care applicable to vascular surgeons, and that he was not familiar with what training or experience vascular surgeons would have to allow them to diagnose and treat epidural hematomas. The vascular surgeon and his group filed a motion for summary judgment, which the trial court granted, finding that because the motion was based on facts not contained in the record, the court believed it was required to treat it as a motion for summary judgment in accordance with Maryland Rule 2-501. The remaining defendants ultimately settled their cases with the plaintiffs before trial, but an appeal was taken on the grant of summary judgment in favor of the surgeon and his group because the entry of judgment as opposed to dismissal precluded the plaintiffs from refiling their case and correcting the certificate deficiencies.
The court considered various sections of the Maryland Malpractice Claims Act, which sets forth the statutory scheme for health claims arbitration. It concluded that when reading the various sections in harmony, dismissal was clearly the appropriate remedy. It also reviewed the most recent appellate decisions involving allegedly defective certificates and found unanimity in those opinions that dismissal was the appropriate sanction for inadequate expert certification. In the end, the appeals court ruled that despite the Maryland Rule that states that the motion must be treated as one for summary judgment,the Act superceded the rule under the circumstances.
The plaintiffs had also challenged the constitutionality of the Act, claiming it was void for vagueness. The court avoided that issue by stating that since the case resolved on nonconstitutional grounds, the constitutional issue would not be addressed.
The certification statute has proven an illusive and poorly drafted law which has resulted in the dismissal of many legitimate cases, many on Draconian and rather ridiculous grounds. For years, practitioners filed the most basic of certificates without an accompanying report, and that process was accepted by the parties’ counsel and the courts as standard procedure. Then suddenly, in 2005, the Court of Special Appeals issued D’Angelo v. St. Agnes Healthcare (in which this writer was plaintiffs’/appellants’ counsel), setting the stage for strict scrutiny of certificates for both form and substance by trial and appellate courts.
Suddenly, acceptable certificates became unacceptable and many cases were dismissed “without prejudice” even though, in reality, they were dismissed “with prejudice” because they could not be refiled due to expiration of the statute of limitations. The standards for expert certification were tightened even further by a series of Court of Appeals opinions that were cited in the subject Powell case (Walzer & Konits), yet the trial and appellate courts seem to almost universally ignore that plaintiffs frequently suspect malpractice but cannot prove a case until their records are obtained, questions are asked of the defendants at depositions, and the experts are provided with a complete set of medical facts to consider. Although the courts have made clear they don’t condone a “shoot first and sort it out later” approach, they seem to expect some clairvoyance by plaintiffs’ experts and counsel. And while the courts have emphasized that the certification is a preliminary opinion and that’s all the statute requires, the scrutiny of the experts’ opinions upon “out of the gate” defense motions to dismiss for certificate deficiencies have been so extensive and harsh that “preliminary opinion” really seems to mean a definitive, permanent and unchangeable opinion.
Please contact the attorneys at Belsky, Weinberg & Horowitz with any questions should you have a malpractice claim or question you wish reviewed.