HCADRO Refiling: Puppolo v. Adventist
The Baltimore Medical Malpractice Lawyer Blog features legal principles in Maryland medical malpractice cases. In this post, I examine what happens after the court finds that a Certificate of Qualifies Expert is deficient. I look at the case of Puppolo v. Adventist Healthcare, Inc., 215 Md. App. 517 (2013), a reported opinion by the then Court of Special Appeals of Maryland. This appellate decision reinforces the jurisdictional mechanisms of the Maryland Health Care Malpractice Claims Act (HCMCA). It specifically addressing the intersection between statutory savings provisions, the requirement of timely expert designations, and the boundaries of a trial court’s discovery discretion. The decision specifically holds that in a Maryland medical malpractice case, the plaintiff must refile a deficient CQE in HCADRO, not the circuit court.
Factual Background on Refiling in HCADRO Medical Malpractice
This is a medical malpractice claim. The plaintiff seeks damages for severe personal injuries allegedly resulting from substandard medical treatment. The plaintiff filed the claim against the defendants. They were a corporate medical system operating a local hospital and an individual doctor acting as a specialized hospitalist. Initially, the plaintiff tried to comply with the mandatory arbitration framework under the HCMCA. She filed a claim before the Health Care Alternative Dispute Resolution Office (HCADRO). However, the procedural foundation of that initial filing was fatally flawed. On January 28, 2011, the circuit court dismissed the plaintiff’s action against the medical system defendant. The plaintiff failed to sufficiently identify the responsible medical providers within the Certificate of Qualified Expert (CQE). The circuit court ordered the dismissal without prejudice, in compliance with standard HCMCA enforcement mechanisms.
Following this dismissal, the plaintiff sought to exploit a statutory safety valve rather than returning to the administrative forum. On March 29, 2011, the plaintiff skipped the HCADRO entirely. She filed an entirely new civil action directly within the Circuit Court for Montgomery County. The plaintiff relied on a specific limitations-savings provision, under the Courts and Judicial Proceedings Article (CJP) § 5-119. She said it permitted the filing of a new complaint directly in the circuit court. She said that this filing effectively resurrected the claim and tolled the applicable statute of limitations.
Other Procedural Deficits
The case moved into discovery against both the medical system and the individual hospitalist physician. Additional procedural deficits emerged. The trial court gave a scheduling order. It included the deadlines by which the parties were required to list their expert witnesses.
Despite the mandates of this scheduling order, the plaintiff failed to identify any expert witnesses intended to be called at trial against the corporate medical defendant within the deadline. Furthermore, the plaintiff failed to file a timely response to the medical system defendant’s subsequent motion for summary judgment. It had been brought based upon that exact absence of expert testimony. With respect to the individual defendant physician, the plaintiff did produce a medical expert for deposition. However, during the course of record proceedings, the plaintiff admitted that this expert was a neurologist. Thus, his qualifications did not enable him to testify to the standard of care expected of a hospitalist.
There was an absence of standard-of-care expert evidence against both defendants. The trial court granted summary judgment in favor of the medical system and the physician. The plaintiff orally requested the court during proceedings for an additional opportunity to cure the discovery deficiencies. The trial court denied it by entering summary judgment. Following the entry of judgment, the plaintiff filed a motion to alter or amend the judgment regarding the individual physician. She attached an “amplified” affidavit from the neurologist that tried to revise and bolster his professional qualifications. The trial court denied this motion, and the plaintiff’s appealed.
Parties’ Arguments on Refiling in HCADRO – Medical Malpractice
On appeal, the primary dispute turned on a matter of statutory interpretation regarding the precise scope of CJP § 5-119. The plaintiff said that the circuit court committed reversible error by dismissing the March 29, 2011 complaint against the healthcare defendant. Then the plaintiff focused heavily on the literal text of CJP § 5-119. It contains a disjunctive phrase. This allows a non-negligent claimant whose case the court dismissed without prejudice to “commence a new civil action or claim for the same cause”. The plaintiff argued that the General Assembly’s use of the disjunctive “or” gave injured parties an absolute choice between alternative paths. Under this interpretation, the plaintiff claimed a right to go around the administrative HCMCA framework. She could file a fresh civil action directly in the circuit court. This treats the savings provision as a standalone procedural bridge.
Conversely, the defendants argued that CJP § 5-119 could not be read in a vacuum. The defendants maintained that while § 5-119 functions as a narrow, limitations-savings provision, it lacks any language describing the initial venue or forum where a “cured” claim must be filed. The defendants noted that CJP § 3-2A-04(b)(1) says that any “claimant or plaintiff” must file an expert certificate and report directly “with the Director” of the HCADRO. Therefore, the defendants argued that a plaintiff whose certificate is deemed legally deficient by a court cannot utilize a limitations-savings statute to completely bypass mandatory arbitration and strip the HCADRO of its threshold jurisdiction.
Summary Judgment
Regarding the summary judgment and discovery rulings, the plaintiff argued that the trial court abused its discretion by denying her a final opportunity to cure her expert identification deficiencies before the formal close of discovery. The plaintiff noted that discovery still had approximately one month remaining. Thus, the harsh consequence of summary judgment—which acted as a dismissal of her claims—should be only for the worst instances of non-compliance. Regarding the physician, the plaintiff said that her expert’s extensive medical experience qualified him to offer standard-of-care opinions, regardless of whether he practiced specifically as a hospitalist. The plaintiff further insisted that the trial court abused its discretion in denying her post-judgment motion to alter or amend, saying that the attached affidavit clarified and amplified the expert’s qualifications to survive summary judgment.
The individual defendant physician said that the plaintiff’s expert entirely lacked the requisite clinical experience to testify regarding the standard of care for a hospitalist. The physician argued that a neurologist’s specialized training and skill in interpreting magnetic resonance imaging (MRIs) could not be replace or compare to the day-to-day operational standard of care required of a hospitalist. Because the plaintiff admitted on the record that her expert could not state the standard of care expected of a hospitalist, the physician argued that summary judgment was required as a matter of law.
Court’s Ruling
The Court of Special Appeals affirmed the judgments of the circuit court across all issues. Reviewing the statutory interpretation question de novo, the appellate court held that neither CJP § 5-119 nor any other statute provision allows a medical malpractice plaintiff to re-file a dismissed claim in the circuit court without first filing a legally sufficient Certificate of Qualified Expert within the HCADRO framework. The court said that CJP § 5-119 is a narrow limitations-savings statute that must operate with the whole HCMCA. While § 5-119 protects a diligent claimant from being barred by the statute of limitations, it does not alter the absolute forum requirements of CJP § 3-2A-04(b)(1), which commands that expert certificates be filed exclusively with the Director of the HCADRO.
The court noted that under the statute scheme, a plaintiff cannot pursue an action in any state court unless it strictly complies with the HCMCA. Because a proper certificate is a condition precedent, the court said that a plaintiff whose certificate is ruled deficient must return to the HCADRO to file anew. The court further ruled that the HCADRO, rather than the circuit court, is the appropriate forum to resolve any underlying limitations or tolling disputes.
Summary Judgment
Turning to the entry of summary judgment, the appellate court held that the trial court was correct as a matter of law. The court noted that to establish a prima facie case of medical malpractice in Maryland, a plaintiff must affirmatively prove:
- The applicable standard of care;
- That the defendant violated said standard; and
- That the violation proximately caused the injuries.
Because medical malpractice actions are complex, plaintiffs need expert testimony to establish a breach of the standard of care. In this instance, the plaintiff failed to designate any expert witness against the medical system defendant. This left the court with no choice but to conclude that the case could not proceed. Against the individual physician, the plaintiff admitted that her expert could not testify regarding the standard of care expected of a hospitalist. Due to this failure to produce qualified expert testimony on the standard of care, the plaintiff could not establish a prima facie case, making summary judgment legally required.
Finally, the appellate court reviewed the trial court’s discovery and post-judgment rulings under a deferential abuse of discretion standard. The court held that the trial court did not abuse its discretion in refusing to grant the plaintiff additional time to cure her discovery failures. The record revealed a persistent history of non-compliance, including a failure to abide by scheduling deadlines or to respond to the pending summary judgment motion. Similarly, the court found no abuse of discretion in the denial of the motion to alter or amend. The plaintiff’s “amplified” affidavit did not contain newly discovered evidence or information from subsequent events. Rather, it merely rehashed the expert’s neurological background. The plaintiff had already admitted it was insufficient to establish the standard of care for a hospitalist.
Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Refiling in HCADRO
The HCMCA can be a legal minefield in medical malpractice cases for even experienced practitioners. Even more challenging were the early cases. They had to establish the controlling application of language that parties could interpret reasonably in multiple ways. In the process, there were harsh results as the Maryland appellate courts clarified these principles.
Puppolo continues to stand for the principle that plaintiffs have to fix deficient CQEs in HCADRO, not the circuit courts.
You can read other Blog posts involving Procedure issues in HCADRO and the circuit courts.
Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.