Powell v. Wurm , 221 Md. App. 223 ( 2015 )

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 0782
September Term, 2013
______________________________________
PHILIP POWELL, PERSONAL
REPRESENTATIVE OF THE ESTATE OF
BEATRICE C. POWELL
v.
ALEX WURM
______________________________________
Krauser, C.J.,
Berger,
Sharer, J. Frederick
(Retired, Specially Assigned),
JJ.
______________________________________
Opinion by Krauser, C.J.
______________________________________
Filed: January 29, 2015
The Maryland Health Care Malpractice Claims Act requires a “claimant or plaintiff”
to file, with his or her medical malpractice “claim or action,” “a certificate of a qualified
expert” and a “report” from that expert. Md. Code Cts. & Jud. Proc. § 3-2A-04(b)(1)(i),
(3)(i) (1974, 2013 Repl. Vol.) (“CJP”). Philip Powell, in his capacity as the personal
representative of the Estate of Beatrice Powell, appellant, filed, in the Circuit Court for
Prince George’s County, a medical malpractice action against Alex Wurm, M.D., appellee.
With that action he also filed, as directed by the foregoing section of the Maryland Code,
both a certificate of qualified expert and the report of the Estate’s medical expert.
The principal question before us1 is whether the report of the Estate’s expert
satisfied Maryland law. The circuit court believed that it did not and dismissed the Estate’s
action. We disagree and shall reverse and remand this case for trial.
I.
On August 5, 2009, Dr. Wurm, a radiologist,2 performed an “inferior [vena] cava
filter placement” procedure on the now-deceased Mrs. Beatrice Powell to treat her chronic
pulmonary emboli.3 This surgical procedure involves the insertion of a “filter” into the
1
The Estate also contends that the Prince George’s County circuit court erred in
failing to grant it an extension of time, “for good cause shown,” so that it could supplement
its expert report. Because our resolution of the Estate’s first and principal contention is
dispositive of this appeal, we need not address this claim.
2
A radiologist is a “physician trained in the diagnostic and/or therapeutic use of
x-rays . . . diagnostic ultrasound and magnetic resonance imaging and applicable physics.”
Stedman’s Medical Dictionary (28th ed. 2006) 1624.
3
A “pulmonary embolism” is the “obstruction of pulmonary arteries, usually by
detached fragments of a clot from a leg or pelvic vein.” Stedman’s Medical Dictionary
(2001) 691.
1
“inferior vena cava,” a “vein formed by the union of the two common iliac veins” and
which “empties into the right atrium of the heart.” Stedman’s Medical Dictionary (2001)
414.
During Dr. Wurm’s performance of that procedure, the filter “perforated the wall”
of Mrs. Powell’s inferior vena cava and, as a result of that perforation, the filter was
deposited, not in the inferior vena cava as intended, but in “an extravascular location.”
Consequently, Mrs. Powell had to subsequently undergo additional surgery to remove the
filter and repair the damage to her inferior vena cava.4 Although Mrs. Powell died a year
later, it is not alleged that her death was a consequence of the procedure performed by Dr.
Wurm.
On August 2, 2012, three years after the filter placement procedure in question and
two years after Mrs. Powell’s death, the Estate filed a medical malpractice claim, with the
Health Care Alternative Dispute Resolution Office, against Dr. Wurm, alleging that the
doctor had failed to “exercise appropriate care and technique” during the filter placement
procedure. That failure led, claimed the Powell Estate, to a piercing of the wall of the
inferior vena cava and to the subsequent misplacement of the filter. In accordance with
section 3-2A-04(b) of the Health Care Malpractice Claims Act, the Estate filed with its
malpractice claim a “certificate of qualified expert,” signed by Robert Vogelzang, M.D., a
radiologist, together with Dr. Vogelzang’s report.
4
It is not clear, from the record, whether a new filter was placed in Mrs. Powell’s
inferior vena cava during this subsequent surgery.
2
Then, after waiving arbitration of its claim, the Estate filed a medical malpractice
complaint against Dr. Wurm in the Prince George’s County circuit court. With its
complaint, the Estate filed the certificate of qualified expert and the report from Dr.
Vogelzang. The certificate stated that it was Dr. Vogelzang’s opinion, “to a reasonable
degree of medical probability,” that Dr. Wurm, in performing the inferior vena cava filter
placement, departed “from the standards of care in connection with such medical
procedure” and that that “departure from the standards of care [was] the proximate cause
of [Mrs. Powell’s] injuries.” The “specific departures from the standard of care are set
forth,” indicated the certificate, “in the attached report.”
In that report, Dr. Vogelzang stated:
In my opinion, Dr. Wurm violated the applicable standards of
care in the placement of an inferior vena cava filter in that he
failed to exercise appropriate care and technique and thereby
perforated the wall of the inferior vena cava and deposited the
filter in an extravascular location, thus necessitating the
subsequent surgery to remove the filter and repair the caval
laceration.
Dr. Wurm moved to dismiss the Estate’s malpractice action on the grounds that the
Estate’s medical expert report was legally insufficient. In support of that claim, Dr. Wurm
cited the following language from Walzer v. Osborne: “[T]he attesting expert report must
explain how or why the physician failed . . . to meet the standard of care and include some
details supporting the certificate of qualified expert.” 395 Md. 563, 583 (2006). Since Dr.
Vogelzang’s report, purportedly, “merely restate[d]” the allegations in his certificate and
provided no additional details, the Estate’s expert report, insisted Dr. Wurm, was
inadequate and the Estate’s malpractice claim must therefore be dismissed.
3
In its opposition to that motion, the Estate asserted that there was “no dispute that
Dr. Wurm perforated” Mrs. Powell’s inferior vena cava and that discovery would be
necessary to determine precisely which of Dr. Wurm’s actions or inactions had led to that
perforation. To that opposition, it attached a “revised opinion letter” from Dr. Vogelzang,
in which Dr. Vogelzang opined that Dr. Wurm had “failed to meet the standard of care”
for placing an inferior vena cava filter by neglecting to use a “guidewire,” or using an
“improper guidewire,” or by not injecting “contrast” to confirm the position of the filter.
This revised opinion letter, however, was submitted to the court after the statutory
period for filing a certificate of qualified expert with the attesting expert report attached
had expired. See CJP § 3-2A-04(b)(1)(i)–(ii) (requiring a plaintiff to file a certificate of
qualified expert within 180 days from the date the complaint is filed in the Health Care
Alternative Dispute Resolution Office). Acknowledging the lateness of this submission,
the Estate requested that the circuit court grant it “an extension of time,” for “good cause
shown,” to file its “certificate of a qualified expert,” under section 3-2A-04(b)(5) of the
Act, so that it could supplement Dr. Vogelzang’s original report.5
With no mention of that revised opinion letter or its contents in its written opinion,
the circuit court dismissed the action, concluding that, because Dr. Vogelzang’s report did
not state “how” or “why” Dr. Wurm failed to meet the standard of care and did not contain
any “supplemental information” or “details to support the certificate,” it had “fail[ed] to
5
The request for an extension of time for “good cause shown” contained no
explanation as to the nature of the “good cause” that purportedly excused the Estate’s
belated submission of this letter.
4
comply with the substantive requirements of Walzer,” and was therefore “legally
insufficient.” The insufficiency of the report, in turn, rendered the certificate of qualified
expert “incomplete.”
II.
The Estate contends that its certificate of qualified expert and the attached report
complied with the requirements set forth in the Health Care Malpractice Claims Act. It
points out that the Act does not mandate the contents of the report, but requires only that
the report of the attesting expert be attached to the certificate of qualified expert. It further
asserts that decisions of the Court of Appeals—notably, Walzer v. Osborne, 395 Md. 563
(2006); Carroll v. Konits, 400 Md. 167 (2007); and Kearney v. Berger, 416 Md. 628
(2010)—have consistently suggested that the attesting expert’s report need only contain
“at least some additional information” that “supplement[s]” the certificate to satisfy
statutory requirements. Walzer, 395 Md. at 583. Finally, it states that Dr. Vogelzang’s
report, which opined that Dr. Wurm had perforated Mrs. Powell’s inferior vena cava by
failing to exercise appropriate care and technique, had done exactly that.
Because our determination of whether the Estate’s certificate of its qualified expert
and report of its attesting expert complied with Maryland law is a question of legal
sufficiency, we conduct a de novo review, keeping in mind that the dismissal of a medical
malpractice claim “is only appropriate if, after assuming the truth of the assertions in the
[c]ertificate and report, and all permissible inferences emanating therefrom, the
requirements set forth in the [Act] are not satisfied.” Carroll, 400 Md. at 180 n.11.
5
Our review begins with the text of section 3-2A-04(b) of the Act, and if the words
of that section, when “construed according to their common and everyday meaning, are
clear and unambiguous and express a plain meaning, we will give effect to the statute as it
is written.” Walzer, 395 Md. at 572 (internal quotation marks and citation omitted). In
requiring that a medical malpractice claimant file a “certificate of qualified expert” with
his or her claim, the Act states:
(b) Filing and service of certificate of qualified expert—Unless the
sole issue in the claim is lack of informed consent:
(1)(i) 1 . . . a claim or action filed after July 1, 1986, shall be
dismissed, without prejudice, if the claimant or plaintiff fails
to file a certificate of a qualified expert . . . attesting to
departure from standards of care, and that the departure from
standards of care is the proximate cause of the alleged injury,
within 90 days from the date of the complaint; . . . .
***
(3)(i) The attorney representing each party, or the party
proceeding pro se, shall file the appropriate certificate with a
report of the attesting expert attached.
The Act clearly specifies what the “certificate of a qualified expert” must attest to.
It must state that there was a “departure from standards of care, and that the departure from
standards of care [was] the proximate cause of the [plaintiff’s] alleged injury.”
CJP § 3-2A-04(b)(1)(i). And it must “mention explicitly the name of the licensed
professional who allegedly breached the standard of care.” Carroll, 400 Md. at 196
(internal citations omitted). But, as for the “report of the attesting expert,” the Act only
mandates that such a report be “attached” to the certificate. CJP § 3-2A-04(b)(3)(1). No
mention is made by the Act as to what it should contain.
6
There is no dispute that Dr. Vogelzang’s certificate opined that “there was a
departure from the standards of care,” that it stated that such a departure was the proximate
cause of Mrs. Powell’s injuries, and that it identified Dr. Wurm as the negligent physician.
Moreover, the doctor’s report was attached to his certificate. Thus the only question before
us is whether Dr. Vogelzang’s report satisfied the requirements of the Act, in other words,
whether the circuit court was correct in dismissing this case on the grounds that the report
was legally deficient.
As noted, the language of the Act itself states only that the report must be “attached”
to the certificate of the plaintiff’s qualified expert. It does not provide any indication of
what the “report of the attesting expert” must contain. But the imprecision of the report
requirement of the Act has fortunately been, in large measure, remedied by the Court of
Appeals in a series of opinions.
First, in Walzer v. Osborne, 395 Md. 563, 583 (2006), the Court of Appeals avowed
that “the certificate required of the plaintiff is merely an assertion that the physician failed
to meet the standard of care and that such failure was the proximate cause of the patient-
plaintiff’s complaints,” and that the attesting expert report “should contain at least some
additional information and should supplement” the certificate. Specifically, the “expert
report must explain,” said the Court, “how or why the physician failed or did not fail to
meet the standard of care and include some details supporting the certificate of qualified
expert.” Id. Then, in Carroll v. Konits, 400 Md. 167 (2007), and Kearney v. Berger, 416
Md. 628 (2010), the Court of Appeals, in addressing the legal sufficiency of a plaintiff’s
“certificate” in each of those cases, reiterated that the report of the attesting expert should
7
state what the applicable standard of care is and how the defendant physician had departed
from it. Carroll, 400 Md. at 197; Kearney, 416 Md. at 649–50.
Thus it is clear from the foregoing decisions that the report of an attesting expert
must state what the applicable standard of care is and provide some information as to how
or why the defendant physician had not met that standard. Therefore, Dr. Vogelzang’s
report, which was attached to the doctor’s “certificate” and filed by the Estate with its
malpractice claim, must be deemed compliant with the requirements of the Act if it
contained “at least some additional information” and provided details “explaining how or
why the defendant doctor allegedly departed from the standards of care.” Walzer, 395 Md.
at 583.
In our view, Dr. Vogelzang’s report did just that. First, it specified that the
“applicable standards of care” that Dr. Wurm allegedly violated were the “standards of care
in the placement of an inferior vena cava filter” and then asserted that that standard of care
was violated by the doctor’s failure to “exercise appropriate care and technique.” Next, it
stated that, as a consequence of his failure to “exercise appropriate care and technique,”
Dr. Wurm perforated the wall of Mrs. Powell’s inferior vena cava and deposited the filter
in an “extravascular location, thus necessitating . . . subsequent surgery to remove the filter
and repair the caval laceration.”
In light of this additional information, which was not contained in Dr. Vogelzang’s
certificate, we do not find that the doctor’s report merely “duplicates” his certificate, as Dr.
Wurm suggests. Indeed, the report stated the precise nature of the medical procedure that
Dr. Wurm was performing when he purportedly breached the standard of care; the specific
8
error that was committed, that is, the misplacement of the inferior vena cava filter; the
injury that resulted, that is, the perforation of the inferior vena cava; and the future medical
procedure that was necessary to address that injury. In so stating, Dr. Vogelzang’s report
supplemented his certificate by providing additional information regarding both the
applicable standard of care and how Dr. Wurm allegedly departed from it in his treatment
of Mrs. Powell. Hence we conclude that the report was legally sufficient and that the circuit
court erred in dismissing the Estate’s claim on the basis of an insufficient certificate of
qualified expert.
III.
But, even if we were to find that Dr. Vogelzang’s report, by itself, was not legally
sufficient, we could still consider the doctor’s certificate and report together to determine
whether both documents, collectively, satisfied the requirements of the Act. Indeed, the
Court of Appeals has suggested on several occasions that the certificate and the report
should be viewed together. First, and most clearly, Maryland’s highest court observed in
Walzer that the certificate of qualified expert and the report of the attesting expert were not
“intended . . . to constitute two separate and distinct documents.” 395 Md. at 580. Rather,
it was the intention of the General Assembly “for the certificate of qualified expert to
consist of both the certificate and the attesting expert report.” Id. at 579.
Next, in Carroll, the Court of Appeals was asked to consider whether the single
document filed with the plaintiff’s complaint in that case complied with the requirements
of the Act. 400 Md. at 171–73. The “document” at issue, there, was a letter from the
plaintiff’s medical expert summarizing the medical treatment the plaintiff had received and
9
offering several opinions regarding medical errors that might have been made. Id. at 173–
74. Ultimately, the Court found the letter or, as it described it, the “Certificate,” to be
insufficient for two reasons: First, the “Certificate” failed to identify the defendant
physicians, state that the defendants departed from the standards of care, and assert that
such a departure was the proximate cause of the plaintiff’s injury. Id. at 201. Second, and
“[e]qually egregious,” it neglected to state what the standard of care was or how the
defendant physicians had departed from it. Id. at 197. In short, the “Certificate” did not
provide the kind of information that the certificate of qualified expert and the expert’s
report were, together, expected to furnish. See, e.g., Walzer, 395 Md. at 583 (stating that
the certificate of qualified expert should assert “that the physician failed to meet the
standard of care and that such failure was the proximate cause of the patient-plaintiff's
complaints” and that the expert’s report “must explain how or why the physician failed or
did not fail to meet the standard of care and include some details supporting the certificate
of qualified expert”).
Finally, in Kearney, the Court of Appeals once again addressed the sufficiency of a
single document filed by the plaintiff, which it referred to as a “certificate of qualified
expert” or more simply as the “certificate,” and it concluded that the “certificate” was
insufficient, under Walzer, because no report of an attesting expert was attached and the
certificate failed to fill in the gap by explaining how or why the defendant failed to meet
the applicable standard of care. 416 Md. at 647, 650. The Court pointed out that its prior
decisions in Carroll and Walzer “show that a claimant or plaintiff whose certificate fails to
state the applicable standard of care and how the defendant allegedly departed from that
10
standard of care is equivalent to a failure to satisfy the report requirement and, accordingly,
renders the certificate insufficient.” Id. at 649–50. This suggests, to us, that the plaintiff
in Kearney could have satisfied the requirements of the Act (but did not) by filing a
certificate of qualified expert that contained all of the information that would otherwise
have been contained in the combination of the expert certificate and report.
In sum, the Court of Appeals has made clear that the certificate and report of the
plaintiff’s expert, together, make up the “certificate of qualified expert” required by the
Health Care Malpractice Claims Act. Walzer, 395 Md. at 580. Moreover, in Carroll, 400
Md. at 196–97, and Kearney, 416 Md. at 649–50, the Court examined single documents
filed by the plaintiffs, in those cases, to determine whether they fulfilled the requirements
of both the expert certificate and the expert report. Thus we conclude, from those foregoing
decisions, that we are permitted to view the certificate of the Powell Estate’s qualified
expert and the report of the Estate’s attesting expert together and determine whether those
documents do the following: identify the defendant physician; state that the defendant
breached the applicable standard of care; opine that such a departure from the standard of
care was the proximate cause of the plaintiff’s injuries; and provide some details as to what
the standard of care was and how the defendant physician failed to meet it. Because we
may consider those documents together, it would not have doomed the Estate’s complaint
if the report of its attesting expert, by itself, was lacking, so long as that informational
insufficiency was cured by the certificate of qualified expert. Likewise, it would not prove
fatal to the Estate’s complaint if Dr. Vogelzang’s report simply “duplicated” his certificate,
as Dr. Wurm suggests, so long as the certificate itself contained all the required
11
information. The important determination to be made would be whether the Estate’s expert
certificate and report, when viewed as a whole, satisfied all of the Act’s requirements.
IV.
We conclude that the Estate’s report of its attesting expert, Dr. Vogelzang, satisfied
the requirements of the Act by supplementing the doctor’s certificate of qualified expert
and providing details explaining how Dr. Wurm allegedly departed from the applicable
standard of care in his performance of an inferior vena cava filter placement procedure on
Mrs. Powell. Moreover, even if we were to determine that the expert report alone was
informationally insufficient, the report and the certificate together do contain sufficient
information to satisfy the requirements of the Maryland Health Care Malpractice Claims
Act. In sum, either approach leads us to the same result, that is, that the Estate filed, with
its medical malpractice claim, a legally sufficient expert certificate and report.
JUDGMENT OF THE CIRCUIT COURT
FOR PRINCE GEORGE’S COUNTY
REVERSED. CASE REMANDED TO
THAT COURT FOR FURTHER
PROCEEDINGS CONSISTENT WITH
THIS OPINION. COSTS TO BE PAID BY
APPELLEE.
12