Opinion
Civil Action No. DKC 2003-3306.
January 3, 2005
MEMORANDUM OPINION
Presently pending and ready for resolution in this medical malpractice case is the motion of all defendants to dismiss. The issues are briefed, and the court held an oral hearing on December 20, 2004. For the reasons that follow, the motion will be denied.
This case arises from the birth of Augustin Webster on December 4, 2000. On October 9, 2003, Plaintiffs filed their Statement of Claim in the Health Claims Arbitration Office (HCAO), together with a document entitled "Certificate of Merit and Report of Expert." The claim named Albert C. Simmonds, IV, M.D., Simmonds Simmonds, Chtd., Maternity Center Associates, Ltd., Shady Grove Adventist Hospital, and Adventist Healthcare, Inc. as "Health Care Providers." The certificate caption delineated "Albert C. Simmonds, IV, et al." as the "Health Care Providers." The body of the certificate read:
A "health care provider" is defined as "a hospital, a related institution as defined in § 19-301 of the Health General Article, a physician, an osteopath, an optometrist, a chiropractor, a registered or licensed practical nurse, a dentist, a podiatrist, a psychologist, a licensed certified social worker-clinical, and a physical therapist, licensed or authorized to provide one or more health care services in Maryland." Md. Code Ann., Cts. Jud. Proc. § 3-2A-01(e) (Supp. 2003).
I, Michael Ross, M.D., state that:
1. I am board certified in Obstetrics and Gynecology.
2. I have reviewed certain medical records in the case of Webster v. Simmonds, et al.
3. I certify that I devote less than twenty percent (20%) of my professional activities to matters related to testifying in personal injury matters.
4. In my opinion, to a reasonable degree of medical probability, the health care providers departed from the standard of care in this case, and these departures were a proximate cause of the claimants' injuries.
Plaintiffs elected to waive arbitration and filed a Complaint in the United States District Court for the District of Maryland on November 18, 2003, naming Albert C. Simmonds, IV, M.D., his professional corporation Simmonds Simmonds, Chtd., Maternity Center Associates, Ltd., Shady Grove Adventist Hospital, and Adventist Healthcare, Inc. as defendants. The complaint contains four counts: 1: minor's claim for negligence; 2: mother's claim for physical and emotional injuries; 3: parents' claim for economic damages, and 4: father's claim for emotional distress. The original defendants answered and a scheduling order was entered. Discovery commenced.
An amended complaint was filed on April 13, 2004, adding Julie Bosak, CNM, Diane Taylor, CNM, and Janet Lobatz, CNM, in all four counts. Later, after the certified nurse midwives filed a motion to dismiss the claims in counts two, three, and four based on the running of the statute of limitations, Plaintiffs voluntarily dismissed those claims. The nurse midwives remain defendants in count one.
On September 8, 2004, all defendants filed a motion to dismiss, contending that Plaintiffs failed to file a valid Certificate of Qualified Expert, thereby violating the mandatory provisions of the Maryland Health Care Malpractice Claims Statute, Md. Code Ann., Cts. Jud. Proc. §§ 3-2A-01, et seq. Plaintiffs contend that the certificate is sufficient and valid. In a supplemental memorandum, Plaintiffs revealed that, in October, 2004, they filed a Line with the HCAO, submitting a "Supplemental Report" of Dr. Ross, consisting of two letters to counsel dated October 11, 2004 and February 25, 2004. In those letters, Dr. Ross states that he reviewed records of the Maternity Center and the hospital, and he identifies Dr. Simmonds and the three nurse midwives by name as among those health care providers, along with "the labor and delivery nurses at Shady Grove Adventist Hospital," whose deviations from the standard of care were the proximate cause of the medical injuries. See Paper 72, Ex. 1.
Although denominated a motion to dismiss, Defendants do not identify which subsection of Fed.R.Civ.P. 12 they believe applies. Judge Murray, in Davison v. Sinai Hospital of Baltimore, Inc., 462 F.Supp. 778 (D.Md. 1978), aff'd, 617 F.2d 361 (4th Cir. 1980), dismissed a malpractice case without prejudice, merely noting that Defendants "contend that until such time as plaintiffs have complied with the arbitration provisions of the Maryland Health Care Malpractice Claims Act they can state no Maryland cause of action and hence this court has no jurisdiction." A prefiling requirement is most appropriately analyzed under Rule 12(b)(6) and treated as a substantive element of state law, see William W. Schwarzer, A. Wallace Tashima James M. Wagstaffe, Federal Civil Procedure Before Trial ¶¶ 1:53.7 and 9:197.5 (2004), rather than as a lack of subject matter jurisdiction under Rule 12(b)(1). Accord Stanley v. United States, 321 F.Supp.2d 805, 809 (N.D.W.Va. 2004) (granting rule 12(b)(6) motion in a Federal Tort Claim case for failure of the plaintiff to satisfy a necessary prerequisite for filing suit under state law). Thus, the consideration of matters outside the pleadings converts it to a motion for summary judgment, and the court may only rule based on uncontroverted facts.
Under Maryland's statutory scheme, a necessary prerequisite to bringing a malpractice action in court is compliance with the arbitration procedures. A person "having a claim against a health care provider for damage due to a medical injury shall file his claim with the Director [of the Health Claims Arbitration Office.]" § 3-2A-04(a)(1). In addition to the claim itself, a claimant must also file a certificate of qualified expert, attesting that a defendant's departure from the standard of care is the proximate cause of the alleged injury. § 3-2A-04(b). Plaintiffs who fail to file an expert's certification have "failed to arbitrate their claim as required by the Statute." McCready Mem'l Hosp. v. Hauser, 330 Md. 497, 513, 624 A.2d 1249, 1257 (1993). A certificate defective in significant regard is tantamount to filing no certificate at all. Watts v. King, 143 Md.App. 293, 309, 794 A.2d 723, 733 (Ct.Spec.App. 2002). The code further requires that: "The attorney representing each party . . . shall file the appropriate certificate with a report of the attesting expert attached. Discovery is available as to the basis of the certificate." § 3-2A-04(b)(3).
The claimant may waive arbitration after filing a certificate of qualified expert and thereafter file a complaint in court. See § 3-2A-06B. After that type of waiver of arbitration, joinder of additional health care providers triggers subsection (g):
After the filing of an election to waive arbitration under this section, if a party joins an additional health care provider as a defendant in an action, the party shall file a certificate of qualified expert required by § 3-2A-04(b) of this subtitle with respect to the additional health care provider.
Defendants rely primarily on D'Angelo v. St. Agnes Healthcare, Inc., 157 Md.App. 631, 853 A.2d 813 (Ct.Spec.App. 2004), for the proposition that the certificate in this case is insufficient. The Court of Special Appeals of Maryland stated that the certificate must name the licensed professional against whom the claims are brought and that the good faith of counsel or the parties is irrelevant:
[W]e reject appellants' contention that the expert's certificate need not name the licensed professional against whom the claims are brought.Id. at 647, 853 A.2d at 823. The court ultimately concluded that:
The experts who signed the certificates in this case against scores of defendants did not attest that any of the defendants had caused harm to Mr. D'Angelo due to a deviation from the appropriate standard of care. In view of the state of knowledge of the certifying experts, this was not a result of a mere inadvertent error. And, even as of the date the case was dismissed, without prejudice, plaintiffs' counsel still did not know whether many of the defendants had deviated from the applicable standard of care. This deficiency was exacerbated by the failure of plaintiffs' counsel to file with the certificate a report by the certifying doctor as mandated by section 3-2A-04(b)(3). The certificates of the type appellants filed in the HCAO fulfill no useful purpose whatsoever and were not in compliance with the requirements of section 3-2A-04(b). We therefore hold that the motions judge did not err in dismissing appellants' claims.Id. at 652, 853 A.2d at 826.
According to the Court of Special Appeals:
The obvious purpose of the certificate requirement reflects the General Assembly's desire to weed out, shortly after suit is filed, nonmeritorious medical malpractice claims.Id. at 645, 853 A.2d at 822.
The body of the certificate in this case did not name any of the health care providers, although Dr. Simmonds is expressly referenced in the caption. Rather, by reference in the caption of the certificate and to the claim, the certificate purports to apply to Dr. Simmonds, Simmonds and Simmonds, Chtd., Maternity Center Associates, Ltd., Shady Grove Adventist Hospital, and Adventist Healthcare, Inc., the "Health Care Providers" included in the claim itself. Without objecting to the sufficiency of Plaintiffs' certificate, Dr. Simmonds filed his own Certificate of Meritorious Defense on February 2, 2004, and on March 2, 2004, Shady Grove and Adventist Health Care filed their Certificate of Qualified Expert.
After being named in the amended complaint, the nurse midwives also filed a Certificate of Qualified Expert. See Paper 53.
Although there is no Maryland case fully on point, the court concludes that the certificate, particularly as supplemented with the October 2004 filing, is sufficient as it relates to the original defendants. Surely Dr. Simmonds himself is included in the certificate. As the first named defendant, his name appears on the caption of the certificate. The four entities, Dr. Simmonds' own professional corporation, the hospital, Adventist Health Care, Inc., and Maternity Center Associates, Inc. are in a better position to complain, but ultimately cannot prevail. Here, the certificate refers to the health care providers named in the claim, rather than the unnamed "foregoing" health care providers as in D'Angelo. Here, there are only Dr. Simmonds and four entities included in the claim, rather than the more than two dozen individual health care providers involved in D'Angelo. Here, there is a "supplemental report" from Dr. Ross specifically attesting to his review of the medical records from the Maternity Center and Shady Grove Adventist Hospital, and concluding that deviations from the standard of care occurred (1) at the Bethesda Birthing Center when the nurse midwives offered Mrs. Webster the option of staying there instead of expeditiously transferring her to the hospital, (2) when Dr. Simmonds did not come immediately to the hospital and evaluate Mrs. Webster for delivery, and finally, (3) when the cesarean was delayed. See Paper 72, Ex. 1. In contrast, the available evidence in D'Angelo revealed that the certifying experts could not have reviewed relevant records and identified particular defendants as having deviated from the standard of care.
None of the parties supported the concept of certifying this case to the Court of Appeals of Maryland at this stage of the proceedings.
Furthermore, the court declines to dismiss due to the absence of a separate report at the time the certificate was filed with the HCAO. This argument was not made until the hearing on the motion and no Maryland appellate court has yet held that dismissal of the claim is the necessary remedy. From the record in this case, reports of experts do not contain any useful information beyond that contained in the certificates themselves and it would seem to be exalting form over substance to dismiss a claim on that basis alone. Further, as noted above, in October 2004, Plaintiffs filed two letters from Dr. Ross with the HCAO that constitute a report, thus fulfilling the requirement, albeit a little late.
With regard to the certified nurse midwives who work for Maternity Center Associates Ltd., Plaintiffs argue that it was not and is not necessary to file a separate certificate because the nurses were automatically subsumed within the certificate relating to their corporate employer. Counsel assert that it is "common practice" to sue the entity for acts of any agent without naming any specific person in the certificate or in the complaint. The three nurse midwives have been added in this case only because the available insurance coverage applies to them individually and not to the corporation.
The question thus presented is whether the "licensed health care provider" is Maternity Center Associates, Ltd. or each certified nurse midwife, or both.
While Plaintiffs may be correct that they may recover against a corporate employer for negligent acts of an employee, it does not follow that the certificate requirement is met merely by naming the employer. Rather, if the certificate requirement is only met by naming the health care provider as to whom it applies, it follows that a claimant is required to provide a certificate that names each health care provider separately. The code provides for the addition of health care provider defendants after a case is in court, whether arbitration is waived by the claimant after filing the certificate, see § 3-2A-06B(g), or by joint stipulation, see 3-2A-06A(d). Because Plaintiffs waived arbitration after filing the initial certificate, they were required under § 3-2A-06B(g) to file a supplemental certificate when they named the certified nurse midwives as additional health care providers.
Plaintiffs contend that if a further certificate was required, the supplemental report filed with the HCAO in October 2004 should suffice. Further, they contend that the report was filed within 180 days of the filing of the amended complaint in this court and thus meets the 90 plus 90 day window applicable in the HCAO, see § 3-2A-04(b)(1), or, alternatively, that this court can extend the time for filing upon a showing of good cause, see § 3-2A-04(b)(5). Defendants, who first heard this argument at the oral hearing in court, requested additional time to brief the timeliness issue.
While the code provides for adding health care providers after suit is brought in court, and requires the filing of a new certificate, the code is silent regarding the time requirement, if any. Once a sufficient certificate is filed at the outset of the claims process, the timing of the filing of any subsequent certificates may not be so critical. The purpose identified by the Court of Special Appeals, i.e., weeding out non meritorious cases at the outset, has already been fulfilled. See D'Angelo, 157 Md.App. at 645, 853 A.2d at 822. At this later stage, the filing of a supplemental certificate must be designed to serve another purpose, such as providing notice to the newly named health care provider. By the time this matter came on for hearing, Plaintiffs had filed with the HCAO a supplemental report specifically naming Julie Bosak, CNM, Janet Lobatz, CNM, and Diana Taylor, CNM as among the health care providers who departed from the standard of care and whose deviations from that standard were the proximate cause of medical injury. Because the code allows extensions of time for good cause shown, the certificate filing requirement is not subject to a rigid timetable. Again, despite the absence of definitive Maryland law, the court declines to dismiss count one against the certified nurse midwives for failure to file a certificate before October 2004.
A separate order will be entered.