Dunham v. Univ. of Md. Medical Ctr. , 237 Md. App. 628 ( 2018 )

Stanley Dunham, et al. v. University of Maryland Med. Ctr., et al., Nos. 260 & 1443,
September Term, 2017
MEDICAL MALPRACTICE; CERTIFICATE OF QUALFIED EXPERT; HEALTH
CARE PROVIDER WHO BREACHED STANDARD OF CARE MUST BE
IDENTIFIED; EXTENSION TO FILE PROPER CERTIFICATE OF QUALFIED
EXPERT
Pursuant to the Healthcare Malpractice Claims Act (the “Act”), Md. Code (2013 Repl.
Vol.) §§ 3-2A-01 et seq. of the Courts and Judicial Proceedings Article (“CJP”), a person
with a medical malpractice claim must file a certificate of qualified expert within 90 days
after the person files a statement of claim with the Health Care Alternative Dispute
Resolution Office (“HCADRO”). CJP § 3-2A-04(b)(1)(i)1. The certificate of qualified
expert must “mention explicitly the name of the licensed professional who allegedly
breached the standard of care.” Carroll v. Konits, 400 Md. 167, 196 (2007). Accord Retina
Grp. of Wash., P.C. v. Crosetto, __ Md. App. __, No. 2385, Sept. Term, 2016, slip op. at
17 (filed Apr. 27, 2018). If the certificate of qualified expert fails to comply with the filing
requirements of the Act, the “‘failure to file a proper certificate is tantamount to not having
filed a certificate at all.’” Puppolo v. Adventist Healthcare, Inc., 215 Md. App. 517, 532
(2013) (quoting D’Angelo v. St. Agnes Healthcare, Inc., 157 Md. App. 631, 645 (2004)).
If a certificate of qualified expert is not filed, as required, within the 90 days following the
filing of a statement of claim, the Act mandates dismissal, without prejudice, unless the
person obtains a statutory extension of time to file the certification. Walzer v. Osborne,
395 Md. 563, 575-76 (2006). The statutory extension sought here was pursuant to CJP §
3-2A-04(b)(1)(ii), which states that, “[i]n lieu of dismissing a claim or action,” “the court
shall grant an extension of no more than 90 days for filing the certificate required,” if two
conditions are shown, i.e., “[t]he limitations period applicable to the claim or action has
expired,” and “[t]he failure to file the certificate was neither willful nor the result of gross
negligence.”
When the two enumerated conditions are met, this provision is mandatory and is granted
automatically in lieu of dismissal. The extension, however, is limited. Pursuant to the
automatic extension made available by CJP § 3-2A-04(b)(1)(ii), a plaintiff must file a
proper certificate of qualified expert within the second 90-day period. If a proper certificate
of qualified expert is not filed within this combined 180-day period provided by the Act, a
medical malpractice claim is properly dismissed.
Here, the certificate of qualified expert filed with the statement of claim in Dunham I stated
that appellees, acting through their agents, servants, or employees, breached the standard
of care, but it did not specifically identify any individuals who breached the standard of
care. The certificate of qualified expert, therefore, failed to conform to the filing
requirements of the Act. Because the applicable limitations period for the claim had
expired, there was no allegation that the failure to file a proper certificate of qualified expert
was willful or the result of gross negligence, and there were 35 days left in the 180-day
time period to file a proper certificate, the court erred in dismissing Dunham I.
Circuit Court for Baltimore City
Case Nos. 24-C-16-006500
24-C-17-002662
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
Nos. 260 & 1443
September Term, 2017
______________________________________
STANLEY DUNHAM, et al.
v.
UNIVERSITY OF MARYLAND MEDICAL
CENTER, et al.
______________________________________
Eyler, Deborah S.,
Graeff,
Nazarian,
JJ.*
______________________________________
Opinion by Graeff, J.
______________________________________
Filed: June 28, 2018
* Judge Kevin F. Arthur did not participate in the
Court’s decision to designate this opinion for
publication pursuant to Md. Rule 8-605.1.
This consolidated appeal arises from a medical malpractice action filed by
appellants, Stanley and Renee Dunham, against the University of Maryland Medical
Center, LLC (“UMMC”), Maryland General Hospital, Inc., d/b/a University of Maryland
Medical Center Midtown Campus (“Midtown”), and the University of Maryland Medical
System Corporation (“UMMS”) (collectively, appellees). The Dunhams allege that
appellees breached the standard of care in failing to implement procedures to prevent
pressure ulcers from developing and/or progressing and failing to treat the pressure ulcers
once they developed.
The claim initially was filed in the Health Care Alternative Dispute Resolution
Office (“HCADRO”) and transferred to the Circuit Court for Baltimore City, which granted
appellees’ motion to strike the certificate of qualified expert and motion to dismiss, without
prejudice (“Dunham I”). Mr. and Mrs. Dunham appealed the dismissal of Dunham I.
The Dunhams then filed in the HCADRO, using the same claim number as the initial
claim, a motion for extension of time for filing a certificate of qualified expert. The
HCADRO granted an extension, the Dunhams filed a second certificate, and the claim was
transferred to the circuit court, which again dismissed the claim (“Dunham II”).
On appeal from the rulings in Dunham I and Dunham II, Mr. and Mrs. Dunham
present the following questions for this Court’s review, which we have rephrased slightly,
as follows:
1. Did the circuit court err in dismissing Dunham I for failure to identify
individual health care providers in the certificate of qualified expert,
even though the only defendants were the named institutional health
care providers?
2. Did the circuit court err in Dunham I in failing to grant the Dunhams
an extension to file a proper certificate of qualified expert pursuant to
Md. Code (2013 Repl. Vol.) § 3-2A-04(b)(1)(ii) of the Courts and
Judicial Proceedings Article (“CJP”), in lieu of dismissing the case?
3. Did the circuit court err in dismissing Dunham II on the basis of res
judicata when no final judgment had been entered in Dunham I?
For the reasons set forth below, we shall vacate the judgment of the circuit court in
Dunham I and dismiss as moot the appeal in Dunham II.
FACTUAL AND PROCEDURAL BACKGROUND
Medical Care
This is a medical malpractice action relating to the care of Mr. Dunham from
October 28, 2013, through February 6, 2014. Because the issues on appeal are procedural
in nature and do not involve the merits of the underlying dispute, we provide only a brief
synopsis of Mr. Dunham’s medical history, as set forth in the pleadings.
On October 28, 2013, Mr. Dunham was admitted to UMMC for a medical procedure
to replace his aortic heart valve. Upon his admission, he was “assessed using the Braden
Scale for predicting pressure ulcer risk and was given a score of less than 15,” which
indicated that Mr. Dunham was “at a high risk for developing pressure ulcers.”
Following the completion of his medical procedure, Mr. Dunham’s medical care
was complicated by hypotension, and he later required treatment for ESBL Klebsiella
2
pneumonia, which ultimately resulted in a tracheostomy.1 Mr. Dunham was in the
intensive care unit at UMMC until November 15, 2013.
On November 2, 2013, during his stay at UMMC, Mr. Dunham began developing
bilateral pressure ulcers on his buttocks. By November 5, the ulcers had worsened,
resulting in skin tears and peeling, and by November 11, Mr. Dunham had “full thickness
skin necrosis.”
On November 15, 2013, Mr. Dunham was transferred to Midtown for further care
to address the pressure ulcers. On February 6, 2014, after receiving additional treatment
for the pressure ulcers, he was discharged with instructions to receive intravenous
antibiotics and continue at-home wound care.
Procedural History
Dunham I
On October 14, 2016, Mr. and Mrs. Dunham filed a statement of claim with the
HCADRO “alleging medical negligence on the part of [UMMC], Midtown, and UMMS”
relating to the development and progression of pressure ulcers. On November 16, 2016,
1
ESBL stands for extended spectrum beta-lactamase producers, which are
organisms resistant to certain antibiotics. Gail Bennett RN, MSN, CIC, Multi-drug
Resistant Organisms (MDROs) in Healthcare Facilities, https://perma.cc/UH2G-M3GN
(last visited May 14, 2018).
3
Mr. and Mrs. Dunham filed a certificate of qualified expert and report (“certificate”) and
then waived arbitration.2
The certificate, completed by Antonios P. Gasparis, M.D., stated, in pertinent part:
Based upon my review of this matter, and upon my knowledge,
training, and experience in the field of vascular surgery and wound care, and
as set forth more fully in the attached Report, it is my opinion to a reasonable
degree of medical probability that Health Care Providers, University of
Maryland Medical Center, LLC, Maryland General Hospital, Inc, d/b/a
University of Maryland Medical Center Midtown Campus, and University of
Maryland Medical System Corporation, through their agents, servants,
and/or employees, breached the applicable standard of care in their care and
treatment of Stanley Dunham in and around October 28, 2013 through
February 6, 2014, and that these breaches of the standard of care caused
injury to Mr. Dunham.
Although the certificate named UMMC, Midtown, and UMMS, “through their agents,
servants, and/or employees,” as responsible for the breach of the standard of care, which
caused Mr. Dunham’s injury, it did not identify the specific agents, servants, or employees
whose care was at issue. In his corresponding report, Dr. Gasparis again identified the
2
As discussed infra, the Healthcare Malpractice Claims Act (the “Act”), Md. Code
(2013 Repl. Vol.) §§ 3-2A-01 et seq., of the Courts and Judicial Proceedings Article
(“CJP”) establishes the procedures required for filing a medical malpractice claim against
a health care provider. Retina Grp. of Wash., P.C. v. Crosetto, __ Md. App. __, No. 2385,
Sept. Term, 2016, slip op. at 14 (filed Apr. 27, 2018). CJP § 3-2A-04(b)(1)(i) requires that
a plaintiff “file a certificate of a qualified expert . . . attesting to [the] 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.” CJP § 3-2A-04(b)(3)(i)
further provides that the certificate of a qualified expert shall be filed “with a report of the
attesting expert attached.” The filing of a proper certificate of a qualified expert and report
is an “‘indispensable step,’” and a claim cannot be maintained without it. Puppolo v.
Adventist Healthcare, Inc., 215 Md. App. 517, 528 (2013) (quoting Breslin v. Powell, 421
Md. 266, 290 n. 20 (2011)).
4
health care providers generally as UMMC, Midtown, and UMMS, “through their agents,
servants, and/or employees,” without specifying which of appellees’ individual health care
providers he believed to have provided deficient care.3
On December 1, 2016, after the Dunhams waived arbitration and the HCADRO
issued an order of transfer, Mr. and Mrs. Dunham filed a two-count complaint against
appellees, case number 24-C-16-006500 (“Dunham I”). The first count asserted a claim of
negligence, alleging that appellees, and their “agents, servants, and employees,” owed a
duty to Mr. Dunham to “render and provide health care within the ordinary standards of
medical, hospital and nursing care,” to exercise care in its selection of personnel, and to
supervise and provide patients with treatment “commensurate with the condition from
which the patient suffers.” It alleged that appellees and their agents were under a duty to
provide care “in accordance with the standards of practice among members of the nursing
profession,” but the “actions and inactions of the [appellees], through their agents, servants,
3
In the report, Dr. Gasparis explained the breach of the standard of care as follows:
[I]n failing to implement appropriate interventions to prevent pressure ulcers;
in failing to render appropriate treatment to prevent the development and
progression of pressure ulcers; in failing to timely implement appropriate
procedures in the early course of the development of pressure ulcers to
prevent their progression; in failing to render appropriate treatment of
pressure ulcers; in failing to perform daily wound care assessments; in failing
to timely relieve pressure of the Claimant to prevent pressure ulcers and/or
prevent such ulcers from progressing; in failing to turn and reposition the
Claimant on a regular and scheduled basis to prevent pressure ulcers and/or
prevent such ulcers from progressing; in failing to provide a proper pressure
redistribution surface; and, among other things, in failing to properly dress
and/or medicate developing pressure ulcers in their early stages.
5
and employees, breached the applicable standards of nursing care,” and as a result of the
negligence of appellees, “acting through their agents, servants and employees, Mr. Dunham
suffered severe and permanent injuries.” The second count alleged loss of consortium,
incorporating the allegations set forth in the first count and stating that the damages were
caused by “the wrongful acts and omissions of the [appellees] directly and by and through
their actual and apparent agents, servants, and/or employees.”
On February 2, 2017, appellees filed a Motion to Strike Plaintiffs’ Certificate of
Merit and Report and Motion to Dismiss and Request for Hearing. They argued that Dr.
Gasparis’ certificate and report “fail[ed] to meet the mandatory minimum requirements set
forth by the Health Care Malpractice Claims Act” because they “fail[ed] to identify by
name [or specialty] any licensed professional health care provider(s) at [UMMC],
[Midtown], and [UMMS] who [we]re alleged to have breached the standard of care.”
Appellees also argued that a proper certificate and report was an “‘indispensable step’ and
a condition precedent to the medical malpractice process,” and “when a plaintiff fails to
file an appropriate certificate and report, her case must be dismissed by the Circuit Court.”
The Dunhams filed an opposition, asserting that their certificate sufficiently stated
the health care providers that breached the standard of care, noting that the health care
institutions were named. The Dunhams argued that the certificate was not required “to
identify specific agents when a Defendant is an institutional agency.”
The Dunhams also argued that the certificate and report “contain[ed] sufficient
detail to allow for the [appellees] to identify which, of their own agents, servants and/or
6
employees, treated [Mr. Dunham] throughout his lengthy, five (5) month admissions.” In
that regard, they asserted that it was “wholly unreasonable” to expect them “to identify the
multitude of physicians and nursing staff who attended to [Mr. Dunham]” because, “[l]ike
most medical charts, [Mr. Dunham’s] record [was] replete with illegible handwritten notes
that [were] impossible to decipher.”
Alternatively, Mr. and Mrs. Dunham argued that, if the court was persuaded that
the certificate and report were deficient, the court was required to grant a 90-day extension
to file an amended certificate pursuant to CJP § 3-2A-04(b)(1)(ii).4 The Dunhams asserted
that the extension was a matter of right and was not discretionary.
In reply, appellees reiterated their argument that it was the Dunhams’ burden to
identify the individual licensed professionals whose care was criticized in the certificate.
4
Section 3-2A-04 provides that a person having a claim against a health care
provider for damage due to a medical injury shall file a claim with the Director of the
Health Care Alternative Dispute Resolution Office, § 3-2A-04(a). Section 3-2A-
04(b)(1)(i) further provides that an action shall be dismissed, without prejudice, if the
plaintiff fails to file a certificate of a qualified expert with the Director within 90 days from
the date of the claim, which attests to the departure from standard of care, and that the
departure from standard of care is the proximate cause of the alleged injury. Section 3-2A-
04(b)(1)(ii) provides:
In lieu of dismissing the claim or action, the panel chairman or the
court shall grant an extension of no more than 90 days for filing the certificate
required by this paragraph, if:
1. The limitations period applicable to the claim or action has expired;
and
2. The failure to file the certificate was neither willful nor the result of
gross negligence.
7
They argued that, by naming only corporate entities, appellees were “unable to determine
which of the thousands of licensed professionals that act as their employees, agents, and/or
servants [were] being criticized for allegedly breaching the applicable standard of care.”
Appellees disputed the claim that the medical records were “impossible to decipher,”
asserting that they had provided electronic medical records, which “clearly identified in
type-written format” many of the individual licensed professionals providing care to Mr.
Dunham.
Appellees also argued that the Dunhams were not entitled to an extension to file a
proper certificate. They asserted that, because filing a proper certificate was a condition
precedent to filing suit, the court did not have jurisdiction over the case or have authority
to grant an extension, and Mr. and Mrs. Dunham had to return to the HCADRO to refile
their claim.5
On March 8, 2017, the court held a motions hearing on appellees’ motion to strike
the certificate and dismiss the case. That same day, the court issued its ruling, stating as
follows:
In the case at bar, there is no specificity, nor mention of any particular
licensed healthcare provider who allegedly violated the standard of care. The
Court does not find that identifying only the listed [appellees] in the
certificate meets the required standards of specificity to determine whether
any particular physician violated the standard of care. The Court is satisfied
that, as filed, the certificate is deficient and does not comport with the statute
on Maryland law.
5
Mr. Dunham was discharged from the hospital on February 6, 2014, and as counsel
for the Dunhams conceded at oral argument, the statute of limitations had expired by March
8, 2017, the date of the hearing.
8
The court then addressed Mr. and Mrs. Dunham’s contention that they should be
permitted an extension to file a conforming certificate. It stated:
The Court notes the Plaintiffs have stated to the Court, if it is inclined
to grant the request to dismiss, then under CJP [§] 3-2A-04(b)(1)(ii), the
Court is required to grant a mandatory extension of no more than 90 days of
filing the certificate [] if the limitations period applicable to the claim or
action has expired, and the failure to file the certificate was neither willful,
nor the result of gross negligence.
The Court has reviewed Puppolo v. Adventist Healthcare, and also
notes that the court, also referring to D’Angelo, noted that the failure to file
a proper certificate is tantamount to not having filed a certificate at all.
The Court notes that one was filed in this particular case, but to apply
CJP [§ 3-2A-04(b)(1)(ii)] under the circumstances would not be consistent
with what this Court believes was the intention of the legislature. Plaintiffs
objectively would have the opportunity to file the bald [certificate] and then
when it is found to be insufficient by the Court, ask for a do over. The Court
does not find that to be appropriate. As such, without a proper certificate,
the Court finds that the matter should not be in the Circuit Court. Again, if
the Plaintiffs so choose, they may file with HCADRO [where] there . . . can
be a determination whether limitations have been expired, . . . whether the
limitations have been tolled, or whether the failure to file a proper certificate
is neither willful, nor the result of gross negligence.
The Court, therefore, will grant the motion to strike the certification
and motion to dismiss will be granted without prejudice.
On April 10, 2017, Mr. and Mrs. Dunham appealed the dismissal of Dunham I.
Dunham II
On March 17, 2017, approximately one week after the circuit court’s ruling in
Dunham I, and prior to filing an appeal from that ruling, the Dunhams filed with the
HCADRO a Motion for Extension of Time For Filing of a Certificate of Qualified Expert.
9
In this pleading, they used the same claim number as that assigned to their initial claim in
Dunham I.
The Dunhams asserted that they were entitled to a 90-day extension to file a proper
certificate, arguing that the HCADRO had jurisdiction over the action because the effect
of the certificate being deficient was that the court never obtained jurisdiction of the claim,
which “remained in HCADRO during this time.” They also asserted that the failure to file
a proper certificate was neither willful nor the result of gross negligence because they were
“unable to identify specific heath care providers due to the illegibility of the Health Care
Providers’ own agents’ handwriting,” but on March 6, 2017, they “finally received the full
medical chart from the Health Care Providers,” which contained electronic entries that
were easily ascertainable.
Appellees argued that the Dunhams could not reopen the statement of claim
underlying Dunham I after waiving arbitration. They asserted that the filing of a certificate,
proper or not, was a condition precedent to filing in court, and once arbitration was waived,
the circuit court properly obtained jurisdiction of the matter.6 Appellees argued that, once
the court dismissed the claim, Mr. and Mrs. Dunham were required to file a “new claim
with a new claim number” in the HCADRO, rather than use the same claim number as
6
We note that this argument was inconsistent with that made to the circuit court,
where appellees argued that the Dunhams were not entitled to an extension because filing
a proper certificate was a condition precedent to filing suit, and without a proper certificate,
the court did not have jurisdiction over the case or have authority to grant an extension.
10
before, because the transfer of the claim in Dunham I to the court removed the matter from
the HCADRO’s jurisdiction.
Appellees alternatively argued that no good cause existed for an extension because,
contrary to the Dunhams’ assertion, appellees had produced, prior to suit being filed,
records that included hand written notes and Electronic Medical Records (“EMR”), which
contained chart records in electronic and typewritten format, including the names of “many
of the individual licensed professionals that cared for Mr. Dunham.”7 Additionally,
appellees asserted that, even if the individual identity of particular individuals could not be
ascertained from the medical records, Mr. and Mrs. Dunham could have “identified
particular specialties and specific dates, times, actions or inactions in the medical records
that [were] claimed to constitute a breach of the standard of care.”
On April 13, 2017, the HCADRO ordered that Mr. and Mrs. Dunham be granted a
60-day extension to file a proper certificate. It found that it had the authority to grant an
extension because the claim “was never properly transferred to the Circuit Court for
Baltimore City due to the Claimant’s failure to file a proper [certificate] with the
[HCADRO],” and therefore, the HCADRO “retained jurisdiction of this claim due to the
improper transfer.” It concluded that an extension was warranted because the statute of
limitations had expired, the Dunhams’ failure to file a certificate “was neither willful nor
the result of gross negligence,” and there was “good cause for an extension.”
7
Appellees specifically stated that nursing notes and assessments included names
of individuals providing care.
11
On April 24, 2017, again using the same claim number as the statement of claim
underlying the court action in Dunham I, Mr. and Mrs. Dunham filed a second certificate
and report with the HCADRO. This certificate stated that appellees, through their agents,
servants, and/or employees, including but not limited to 29 listed individuals, breached the
standard of care. Mr. and Mrs. Dunham then elected to waive arbitration to refile their
claim in circuit court. On April 27, 2017, the HCADRO issued an order transferring the
matter to circuit court.
On May 12, 2017, Mr. and Mrs. Dunham filed another complaint in the circuit court,
case number 24-C-17-002662 (“Dunham II”), asserting the same two causes of action
raised in Dunham I against appellees. The only substantive change from the complaint
filed in Dunham I was an allegation in the body of the complaint of Dunham II, which
identified 29 individuals, consistent with the names identified in the second certificate, who
were alleged to have provided deficient care.8
On June 23, 2017, appellees moved to strike the complaint, asserting that the case
“ha[d] already been filed, litigated and argued” in the circuit court, it was pending on
appeal, and therefore, the circuit court did not have “jurisdiction over this case.” They
asserted that Mr. and Mrs. Dunham had improperly “re-opened their Statement of Claim”
in the HCADRO, which had no jurisdiction to act on the request.
8
In Dunham II, Mr. and Mrs. Dunham named only appellees as defendants. They
did not name any of the individual health care providers identified therein as individual
defendants.
12
Mr. and Mrs. Dunham opposed appellees’ motion to strike, and in the alternative,
they sought a stay of Dunham II. They first argued that the HCADRO “retained jurisdiction
over this case” after the claim was transferred to circuit court because the court “directed
to do so.” Second, they argued that they were not asking the court to address the sufficiency
of the certificate at issue on appeal in Dunham I, but rather, they “brought a new case”
seeking damages. Finally, Mr. and Mrs. Dunham requested that, if the court was not
inclined to deny appellees’ motion, it stay the matter pending the outcome of the appeal of
Dunham I.
On August 18, 2017, the court held a hearing on appellees’ motion to strike the
complaint filed in Dunham II. The parties reiterated the arguments in their written
pleadings. In response to the court’s question whether this was a “parallel related case” or
“a duplicate case,” counsel for the Dunhams stated that it was not a duplicate case “in the
sense that [there was] a new case number” and a new certificate “that had changed the
posture of the case.” Counsel also asserted that, if the court granted a stay and ruled that
the court had jurisdiction over the claim, counsel would dismiss the appeal.
At the end of the hearing, the court stated that it was “inclined to grant the motion”
to strike the complaint, but it was going to re-read a case before issuing its order. In an
order entered on August 24, 2017, the court dismissed Dunham II. It made the following
findings:
FOUND that the parties agree that the claim at issue in this case is the
same claim that was at issue in case number 24-C-16-006500, that it involves
the same parties and the same causes of action, and it is further
13
FOUND that the court’s March 8, 2017 decision to dismiss all claims
in case number 24-C-16-006500 is currently pending appellate review in the
Court of Special Appeals, and it is further
FOUND that the principles of res judicata apply to bar action in the
matter currently pending in this court, based upon the final judgment issued
in case number 24-C-16-006500 and the fact that the matter is currently
pending appellate review, and it is further
FOUND that the application of the statute of limitations may serve to
bar the instant action if it is treated as a “new” claim rather than the
“reopening” of the original claim as Plaintiffs assert that it is, and it is further
FOUND that no protective action in this matter will preserve the
claims if, in fact, the limitations period has expired on the substantive claim,
and it is further
FOUND that the Plaintiff[s] may be successful in preserving the
underlying claim through litigation of case number 24-C-16-006500 in the
appellate court.
The court then ordered, as follows:
ORDERED that Plaintiff’s [sic] Motion to Stay [] is DENIED, and
it is further
ORDERED that the Defendant’s [sic] Motion to Strike [], which this
Court shall treat as a Motion to Dismiss, is GRANTED on the basis of res
judicata.
Mr. and Mrs. Dunham appealed the dismissal of Dunham II, which was consolidated
with the appeal of Dunham I.
STANDARD OF REVIEW
Our review of the court’s decision in this case involves the court’s grant of motions
to dismiss, as well as questions of statutory interpretation, and therefore, our review is de
novo. See Breslin v. Powell, 421 Md. 266, 277 (2011) (where an order “involves an
14
interpretation and application of Maryland statutory and case law,” appellate courts “must
determine whether the lower court’s conclusions are ‘legally correct’ under a [non-
deferential] standard of review.”) (quoting Walter v. Gunter, 367 Md. 386, 392 (2001));
Advance Telecom Process LLC v. DSFederal, Inc., 224 Md. App. 164, 173 (2015) (“‘We
review the grant of a motion to dismiss de novo.’”) (quoting Unger v. Berger, 214 Md.
App. 426, 432 (2013)).
DISCUSSION
I.
Healthcare Malpractice Claims Act
Before addressing appellant’s specific contentions on appeal, we address briefly the
provisions of the Healthcare Malpractice Claims Act (the “Act”), CJP §§ 3-2A-01 et seq.
The Act, in general, “governs procedures for all ‘claims, suits, and actions . . . by a person
against a health care provider for medical injury allegedly suffered by the person in which
damages of more than the limit of the concurrent jurisdiction of the District Court are
sought.’” Puppolo v. Adventist Healthcare, Inc., 215 Md. App. 517, 526 (2013) (quoting
CJP § 3-2A-02(a)(1)). Accord Retina Grp. of Wash., P.C. v. Crosetto, __ Md. App. __,
No. 2385, Sept. Term, 2016, slip op. at 14 (filed Apr. 27, 2018). To initiate a claim under
the Act, “‘a person with a medical malpractice claim [must] first file that claim with the
Director of the [HCADRO].’” Walzer v. Osborne, 395 Md. 563, 575 (2006) (quoting
Edward W. McCready Mem’l Hosp. v. Hauser, 330 Md. 497, 500-01 (1993)). Within 90
days after filing a claim with the HCADRO, the plaintiff “‘must file a certificate of
15
qualified expert . . . attesting to a defendant’s departure from the relevant standards of care
which proximately cause the plaintiff’s injury.’” Id. (quoting McCready, 330 Md. at 501).
See CJP § 3-2A-04(b)(1)(i)1.
After filing the certificate, the plaintiff can waive arbitration and file suit in the
circuit court. CJP § 3-2A-06B(b)(1); Crosetto, slip op. at 15. As this Court recently
explained, however, “[a]lthough the certificate is a condition precedent to filing a medical
malpractice case in circuit court, failure to satisfy that condition does not . . . divest the
court of subject matter jurisdiction.” Crosetto, slip op. at 15 n. 9. Accord Kearney v.
Berger, 416 Md. 628, 660 n.13 (2010) (“We have . . . explicitly rejected the notion that
failure to satisfy the [Act’s] procedures divests a trial court of subject matter jurisdiction.”).
The purpose of the health claims arbitration process and the certificate requirement
is “‘to weed out non-meritorious claims and reduce the costs of litigation.’” Crosetto, slip
op. at 16 (quoting Wilcox v. Orellano, 443 Md. 177, 184 (2015)). Accord Carroll v. Konits,
400 Md. 167, 176 (2007) (the statute is “an attempt by the General Assembly, in substantial
part, to limit the filing of frivolous malpractice claims.”); Puppolo, 215 Md. App. at 531
(“The purpose of the HCMCA is to ‘weed out’ unmeritorious malpractice claims.”)
(quoting D’Angelo v. St. Agnes Healthcare, Inc., 157 Md. App. 631, 645 (2004)).
Accordingly, the plaintiff’s “certificate of qualified expert must include information
necessary for evaluating whether the defendant breached the standard of care.” Kearney,
416 Md. at 651. It must “mention explicitly the name of the licensed professional who
allegedly breached the standard of care.” Carroll, 400 Md. at 196. Accord Crosetto, slip
16
op. at 17 (the certificate must identify with specificity the licensed professional(s) who
breached the standard of care).
Requiring a medical malpractice claimant to identify the health care providers who
allegedly provided deficient care is both “consistent with the General Assembly’s intent to
avoid non-meritorious claims” and “reasonable because the Certificate would be rendered
useless without an identification of the allegedly negligent parties.” Carroll, 400 Md. at
196. “When a Certificate does not identify, with some specificity, the person whose actions
should be evaluated, it would be impossible for the opposing party, the HCADRO, and the
courts to evaluate whether a physician, or a particular physician out of several, breached
the standard of care.” Id. The “‘failure to file a proper certificate is tantamount to not
having filed a certificate at all.’” Puppolo, 215 Md. App. at 532 (quoting D’Angelo, 157
Md. App. at 645).
If a plaintiff fails to file an expert’s certificate, as required, the Act mandates
dismissal, without prejudice, “‘unless the plaintiff obtains one of three statutory extensions
of the time to file an expert’s certificate.’” Walzer, 395 Md. at 575-76 (quoting McCready,
330 Md. at 501). Two statutory provisions involve an extension based on “good cause.”9
9
CJP § 3-2A-04(b)(5) states that “[a]n extension of the time allowed for filing a
certificate of a qualified expert under this subsection shall be granted for good cause
shown.” CJP § 3-2A-05(j) provides: “Except for time limitations pertaining to the filing
of a claim or response, the Director or the panel chairman, for good cause shown, may
lengthen or shorten the time limitations prescribed in subsections (b) and (g) of this section
and § 3-2A-04 of this subtitle.” The Dunhams did not seek an extension in the circuit court
based on either of these provisions.
17
The extension the Dunhams sought in circuit court was pursuant to CJP § 3-2A-04(b),
which provides, in pertinent part, as follows:
Unless the sole issue in the claim is lack of informed consent:
(1) (i) 1. Except as provided in item (ii) of this paragraph, 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 with the
Director 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;
***
(ii) In lieu of dismissing the claim or action, the panel chairman or
the court shall grant an extension of no more than 90 days for filing the
certificate required by this paragraph, if:
1. The limitations period applicable to the claim or action
has expired; and
2. The failure to file the certificate was neither willful nor
the result of gross negligence.
CJP § 3-2A-04(b).
II.
Dunham I
Mr. and Mrs. Dunham contend that the circuit court erred in dismissing Dunham I.
In support, they make two arguments. First, they argue that “Maryland law does not require
a certificate of qualified expert to name an individual, licensed health care provider when
allegations involve direct corporate liability.” Second, they argue that the Act does not
18
require a certificate “to identify specific agents when a defendant is an institutional
agency.”
Appellees disagree. They contend that the court properly dismissed Dunham I.
A.
Direct Corporate Liability
The Dunhams argue that “a hospital can be directly negligent for the care
administered to its patients,” and pursuant to the doctrine of “corporate negligence,” a
hospital may be liable without “a showing of negligence of any heath care provider.”
Accordingly, they assert that they “should not be required to name a licensed, individual
provider in their [certificate] when their negligence claim does not rely upon the actions or
inactions of an individual, licensed provider.”
Appellees contend that the Dunhams “waived their claim that the appellees’ alleged
negligence involve[d] direct corporate liability [because] it was not raised below.” In any
event, they assert that the complaint did not allege corporate actions as the basis for their
claims, but rather, the claim was “grounded on a theory of vicarious liability based on the
alleged breach in the nursing standards of care.” Appellees argue that dismissal was
appropriate because neither the complaint nor the certificate alleged acts of negligence on
the part of appellees “separate and apart from the alleged breaches of the standard of care
of Appellees’ ‘agents, servants and/or employees.’”
We address first appellees’ claim that Mr. and Mrs. Dunham waived their claim that
they alleged direct corporate liability because it was not raised below. The Dunhams
19
dispute this contention, alleging that they did argue below that the hospitals could face
independent liability where no individual licensed professional faced liability.
Maryland Rule 8-131(a) provides that, “[o]rdinarily, the appellate court will not
decide any . . . issue unless it plainly appears by the record to have been raised in or decided
by the trial court.” “The application of the rule limiting the scope of appellate review to
those issues and arguments raised in the court below ‘is a matter of basic fairness to the
trial court and to opposing counsel, as well as being fundamental to the proper
administration of justice.’” In re Kaleb K., 390 Md. 502, 513 (2006) (quoting Medley v.
State, 52 Md. App. 225, 231 (1982)). Accord Alexis v. State, 209 Md. App. 630, 667, aff’d,
437 Md. 457 (2014). Therefore, “if a party fails to raise a particular issue in the trial court,
. . . the general rule is that he or she waives the issue on appeal.” Nalls v. State, 437 Md.
674, 690 (2014).
Here, as appellees note, the premise of appellees’ liability was grounded in the
theory of vicarious liability. For example, in the certificate, Dr. Gasparis attested that
appellees, “through their agents, servants, and/or employees, breached the applicable
standard of care.” (Emphasis added). In their complaint, Mr. and Mrs. Dunham alleged
that the “actions and inactions of the [appellees], through their agents, servants, and
employees, breached the applicable standards of nursing care,” and, as a result, appellees,
“acting through their agents, servants and employees,” harmed Mr. Dunham. (Emphasis
added).
20
At the hearing on the motion to dismiss Dunham I, counsel for the Dunhams did not
argue that the certificate was proper because the claim was one of direct negligence against
appellees. To be sure, counsel for the Dunhams stated at the hearing that an institution
could have faulty policies. In response to a question by the court regarding whether the
claim would have to be the failure of a physician, a health care provider, however, counsel
did not disagree. Instead, he stated that the people usually responsible for the injuries that
Mr. Dunham suffered are nurses. And in the Dunhams’ opposition to the motion to strike
the certificate, they argued that appellees’ reliance on Carroll, 400 Md. 167, to assert that
specific individuals must be identified in the certificate and report, was misplaced because
that case “did not involve any institutional defendants and did not involve any claims of
vicarious liability.” (Emphasis added). The Dunhams did not argue below that their
certificate was adequate because they were asserting claims of direct negligence against
appellees, and therefore, this claim is not preserved for this Court’s review.
Moreover, although the issue of direct corporate liability of a hospital is an
interesting and novel one, the complaint, certificate, and report here all alleged that
appellees breached their standard of care through the actions or inactions of their agents,
servants, and employees.10 See Crosetto, slip op. at 24 (allegations against the organization
10
Mr. and Mrs. Dunham assert in their brief on appeal that the certificate and report
“contained numerous allegations of direct negligence against Appellees.” In support, they
point to Dr. Gasparis’ “specific criticisms,” including: “[The Defendants] breached the
standard of care in failing to recognize Mr. Dunham’s high risk for developing pressure
ulcers.” The report, however, in the portion that the Dunhams refer to as “[The
Defendants],” actually states: “Health Care Providers, University of Maryland Medical
21
were based on respondeat superior and did not assert that the entity itself committed
medical malpractice). Accordingly, we agree with appellees that this issue is not properly
before this Court for review.
B.
Vicarious Liability
Mr. and Mrs. Dunham next contend that “Maryland law does not require naming
specific health care providers in a [certificate] for agency purposes when institutional
defendants are properly named.” They assert that “no subsection of [CJP] § 3-2A-04(b)
addresses any requirement concerning the naming of individual, licensed health care
providers in a [certificate] or [r]eport.”
The Maryland appellate cases, however, have made clear that a certificate must
“mention explicitly the name of the licensed professional who allegedly breached the
standard of care.” Carroll, 400 Md. at 196. Accord Crosetto, slip op. at 17 (certificate
must identify with specificity the licensed professional(s) who breached the standard of
care). See also Barber v. Catholic Health Initiatives, Inc. 180 Md. App. 409, 423-24, 434
(certificate using the term “Health Care Providers” was sufficient where each defendant
was listed individually on the claim form and statement of claim, which then defined them
collectively as “Health Care Providers,” and therefore, “[w]hen read with the Statement of
Center, LLC, Maryland General Hospital, Inc, d/b/a University of Maryland Medical
Center Midtown Campus, and the University of Maryland Medical System Corporation,
through their agents, servants and/or employees.” (Emphasis added).
22
Claim, the [c]ertificate unequivocally identified” the health care providers, physicians and
entities that violated the standard of care), cert. denied, 406 Md. 192 (2008).
Here, the certificate filed with the statement of claim in Dunham I stated that
appellees, acting through their agents, servants, or employees, breached the standard of
care, but it did not specifically identify any individuals who breached the standard of care.
Without more detail regarding the licensed professionals who allegedly breached the
standard of care, thereby making appellees vicariously liable, the certificate did not contain
the “information necessary for evaluating whether the defendant breached the standard of
care.” Kearney, 416 Md. at 651.
Mr. and Mrs. Dunham contend that “a certificate of qualified expert and report are
not a substitute for discovery,” and therefore, “only minimal detail is required.” The Court
of Appeals, however, has explained that, “[e]ven if Petitioners could have conducted
discovery in lieu of Respondent’s filing of an attesting expert report, that fact does not
modify the clear legislative policy of weeding out non-meritorious claims and reducing the
cost of litigation.” Walzer, 395 Md. at 583. Thus, a complete and valid certificate and
report must be filed to maintain a medical malpractice action in accordance with “the
meaning and intention of the Legislature.” Id. at 584. It is, as the Court of Appeals has
explained, an “indispensable step.” Carroll, 400 Md. at 181. And to satisfy this step, a
plaintiff must “identify, with some specificity, the person whose actions should be
evaluated.” Id. at 196. Accord Crosetto, slip op. at 21. The circuit court properly
determined that Mr. and Mrs. Dunham failed to do so with their initial certificate.
23
III.
90-Day Extension
Mr. and Mrs. Dunham contend that, even if the certificate in Dunham I was
deficient, the circuit court erred by failing to grant them a 90-day mandatory extension to
file a proper certificate in lieu of dismissing the case. They assert that, by dismissing the
case, the court violated CJP § 3-2A-04(b)(1)(ii), which they refer to as “the savings
statute.” Mr. and Mrs. Dunham contend that, pursuant to the savings statute, the court was
“mandated to give [them] an extension of no more than 90 days to file an appropriate
certificate,” asserting that the extension set forth therein “is awarded to plaintiffs as a matter
of right and is not discretionary.”
Appellees disagree. They contend that “an extension to file a valid [certificate] in
the trial court was not an option in this instance because [Mr. and Mrs. Dunham] did in fact
file a [certificate] within 90 days of filing their Statement of Claim” and the savings statute
“applies only when no [certificate] has been filed.”
CJP § 3-2A-04(b)(1)(ii) states, in pertinent part:
(ii) In lieu of dismissing the claim or action, the panel chairman
or the court shall grant an extension of no more than 90 days for filing
the certificate required by this paragraph, if:
1. The limitations period applicable to the claim or action
has expired; and
24
2. The failure to file the certificate was neither willful nor
the result of gross negligence.
(Emphasis added).
Here, after the court concluded that Mr. and Mrs. Dunham had filed a deficient
certificate, it considered their request for an extension under CJP § 3-2A-04(b)(1)(ii) of
“no more than 90 days” to cure the deficiency. Although the court acknowledged that this
Court had stated in Puppolo, 215 Md. App. at 532 (quoting D’Angelo, 157 Md. App. at
645), that “‘the failure to file a proper certificate is tantamount to not having filed a
certificate at all,’” it concluded that, “to apply CJP [§ 3-2A-04(b)(1)(ii)] under the
circumstances would not be consistent with what this [c]ourt believes was the intention of
the legislature” because it would give the plaintiff the opportunity to file a bare certificate
and then “ask for a do over.” Accordingly, the court granted the motion to dismiss without
giving the Dunhams an extension to file an adequate certificate.
To determine whether appellants are correct that, pursuant to the statute, the court
was “mandated to give plaintiffs an extension of no more than 90 days to file an appropriate
certificate,” we must apply well-settled rules of statutory construction:
The cardinal rule of statutory interpretation is to ascertain and
effectuate the real and actual intent of the Legislature. A court’s primary goal
in interpreting statutory language is to discern the legislative purpose, the
ends to be accomplished, or the evils to be remedied by the statutory
provision under scrutiny.
To ascertain the intent of the General Assembly, we begin with the
normal, plain meaning of the statute. If the language of the statute is
unambiguous and clearly consistent with the statute’s apparent purpose, our
inquiry as to the legislative intent ends ordinarily and we apply the statute as
written without resort to other rules of construction. We neither add nor
25
delete language so as to reflect an intent not evidenced in the plain and
unambiguous language of the statute, and we do not construe a statute with
“forced or subtle interpretations” that limit or extend its application.
State v. Bey, 452 Md. 255, 265 (2017) (quoting State v. Johnson, 415 Md. 413, 421–22
(2010)). In interpreting a statute, we give it a “reasonable interpretation, not one that is
absurd, illogical or incompatible with common sense.” Id. at 266.
The statute, as written, expressly states that, “[i]n lieu of dismissing the claim or
action,” “the court shall grant an extension of no more than 90 days for filing the certificate
required,” if the requisite conditions are shown, i.e., the limitations period has expired and
the failure to file the certificate was neither willful nor the result of gross negligence. CJP
§ 3-2A-04(b)(1)(ii).11 Initially, we note that, prior to 2004, CJP § 3-2A-04(b)(1)(ii) limited
the power to grant an extension to the panel chairman of the HCADRO. In 2004, however,
the General Assembly amended the statute to authorize “the court” to approve the 90-day
extension. Barber v. Catholic Health Initiatives, Inc., 174 Md. App. 314, 334, n. 12
(2007).12
11
Here, there is no dispute that, at the time of the request, the limitations period had
expired. According to the complaint, Mr. Dunham was released from the hospital on
February 6, 2014, with open wounds, and the request for an extension to file a new
certificate was made on February 17, 2017, more than three years later. See CJP § 5-109(a)
(a medical malpractice claim must be filed within the earlier of “(1) [f]ive years of the time
the injury was committed; or (2) [t]hree years of the date the injury was discovered.”).
12
Barber v. Catholic Health Initiatives, Inc., 174 Md. App. 314 (2007) [“Barber
I”], was vacated by the Court of Appeals and remanded to this Court to be reconsidered in
light of the decision in Carroll v. Konits, 400 Md. 167 (2007). This Court did so and found
that Carroll was distinguishable and did not require a different result. Barber v. Catholic
Health Initiatives, Inc., 180 Md. App. 409, 426 (2008) [“Barber II”].
26
Moreover, the statute provides that the court “shall” grant an extension if the
requisite conditions are shown. We agree with the Dunhams that the word “shall” denotes
mandatory action. The term is defined as “[h]as a duty to; more broadly, is required to.”
Black’s Law Dictionary 1407 (8th ed. 2004). As the Court of Appeals has explained:
The term “shall” is [] unambiguous. It remains a well-settled principle
of this Court that “[w]hen a legislative body commands that something be
done, using words such as ‘shall’ or ‘must,’ rather than ‘may’ or ‘should,’
we must assume, absent some evidence to the contrary, that it was serious
and that it meant for the thing to be done in the manner it directed.”
Walzer, 395 Md. at 580 (quoting Thanos v. State, 332 Md. 511, 522 (1993)). Indeed, the
Court of Appeals in McCready, 330 Md. at 510, interpreted the use of the language “shall
grant an extension” as indicating an intent that, not only is it mandatory to grant an
extension, but such an extension “be granted automatically in lieu of dismissal,” subject to
a defendant’s motion to dismiss on the grounds that the claimant’s failure to file the
expert’s certificate within the first 90 days was grossly negligent or willful.”
In McCready, 330 Md. at 508, the Court of Appeals discussed in detail how the 90-
day extension set forth in CJP § 3-2A-04(b)(1)(ii) operates. In that case, the claimants filed
a claim with the HCADRO five days before the statute of limitations was to run. Id. at
501. Although the claim was timely filed, they failed to timely file a certificate within the
90-day period. Id. at 502. The defendants filed motions to dismiss based on the failure to
file a certificate, and 111 days after filing their claim, the claimants requested a 90-day
extension under CJP § 3-2A-04(b)(1)(ii). Id. The HCADRO “did not take any immediate
action on the request,” but it scheduled a hearing. Id. at 503. Following a hearing (217
27
days after filing the claim), the HCADRO dismissed the claim for failure to file a certificate
or request an extension within the initial 90-day period following the filing of their claim.
Id.
The claimants, who still had not filed the required certificate, instituted a court
action to nullify the HCADRO’s order, asserting that CJP “§ 3-2A-04(b)(1)(ii) created a
mandatory extension for filing an expert’s certificate and that the Panel Chair therefore
erred in failing to grant their request for such an extension.” Id. The Court of Appeals
agreed that the extension was mandatory and, as indicated, it determined that the extension
was automatic. Id. at 510. It explained that the limitation of the extension to “no more
than 90 days” indicated that
the General Assembly intended to create a limited 90–day extension that
commences immediately and automatically upon the expiration of the initial
90–day period. The reason for the time limit is obvious—for subparagraph
(b)(1)(ii) claimants, the statute of limitations has run and the claimants have
already had a considerable period of time to prepare their claims. In contrast
to the “good cause” extensions under §§ 3–2A–04(b)(5) and 3–2A–05(j),
subparagraph (b)(1)(ii) gives claimants in a limited set of circumstances up
to 180 days to file an expert’s certificate without the need to prove “good
cause.”
Id. at 511. The Court noted that, although the claimants had filed a request for an extension,
“a bare request for an extension does not toll the second 90-day time period under § 3-2A-
04(b)(1)(ii).” Id. at 513. The Court held that, “[w]here a claimant seeks a § 3–2A–
04(b)(1)(ii) extension, it must file the expert’s certificate within the second 90–day period,
i.e., within 180 days from the initial filing of the claim.” Id. Because the claimants in that
28
case had not filed their certificate within the 180-day period provided in the statute, their
claim was correctly dismissed. Id. at 513.
Based on the language of CJP § 3-2A-04(b)(1)(ii), and the case law, we hold that,
where a plaintiff fails to file the certificate required by § 3-2A-04, and certain conditions
exist, the court is required to grant an extension to file the requisite certificate, “[i]n lieu
of dismissing” the action. The conditions that must exist for the mandatory extension are:
(1) the limitations period has expired; (2) there has been no assertion by the defense, and
finding by the court, that the failure to file the requisite certificate was grossly negligent or
willful; and (3) no more than 180 days have passed since the claim was filed.
Here, there is no dispute that the limitations period had expired, and there was no
allegation before the court in this case that the failure to file the requisite certificate was
grossly negligent or willful. And, as discussed infra, the request for an extension was made
within 180 days of the filing of the claim.
Appellees argue, however, that this mandatory extension “applies only when no
[certificate] has been filed.” Because Mr. and Mrs. Dunham had filed a certificate, albeit
an insufficient one, appellees assert that an extension was not required. We disagree.
The Maryland appellate courts have stated repeatedly that the “‘failure to file a
proper certificate is tantamount to not having filed a certificate at all.’” Walzer, 395 Md.
at 582 (quoting D’Angelo, 157 Md. App. at 645). In Breslin, 421 Md. at 292, the Court of
Appeals addressed the argument whether, in the circumstance where the plaintiff, similar
to the Dunhams, filed a timely, but deficient, certificate, summary judgment was the proper
29
remedy. Dr. Breslin argued, similar to the argument in this case, that dismissal without
prejudice applied only in circumstances where there was a failure to file a certificate, i.e.,
the plaintiff “does not file a certificate at all.” Id. The Court of Appeals disagreed, stating:
We imagine several ways in which a plaintiff could “fail to file a
certificate of qualified expert,” including but not limited to: (1) not filing a
certificate at all; (2) filing a certificate of an unqualified expert who does not
have the requisite training; (3) filing a certificate of an otherwise qualified
expert who devotes more than twenty percent of his professional activities to
testimony in personal injury cases; or (4) filing a certificate of a qualified
expert that does not include the required report. These and other ways in
which a claimant or plaintiff can “fail to file” are not distinguished in the
statute.
Id. at 292-93. The Court agreed with our statement in D’Angelo, 157 Md. App. at 645, that
“failure to file a proper certificate is tantamount to not having filed a certificate at all.”
Breslin, 421 Md. at 292-93. Accordingly, the Court held that, pursuant to the plain
language of the Act, “dismissal without prejudice of the underlying claim for the filing of
a non-compliant Certificate, regardless of the particular qualification or requirement the
Certificate or its attestor fails to meet,” is required. Id. at 270.13
Applying this analysis to the present case, the Dunhams’ filing of a non-compliant
certificate amounted to a failure to file a certificate pursuant to CJP § 3-2A-04(b)(1)(i).
Pursuant to § 3-2A-04(b)(1)(ii), the circuit court was required to grant them an extension
of no more than 90 days to file the certificate required, in lieu of dismissing the action. The
court erred when it dismissed Dunham I without permitting Mr. and Mrs. Dunham an
extension to file a proper certificate. Accordingly, we shall vacate the order of the circuit
13
The mandatory extension provision was not at issue in that case.
30
court with instructions to grant the Dunhams an extension to file a certificate that satisfies
the requirements of the Act.
A question remains, however, regarding the allotted time for an extension under CJP
§ 3-2A-04(b)(1)(ii). As indicated, the Court in McCready, 330 Md. at 512, held that the
90-day extension available under CJP § 3-2A-04(b)(1)(ii) permits an extension for filing a
proper certificate only up to 180 days from the date the claimant filed the claim with the
HCADRO.
Here, a 90-day extension to file a proper certificate was automatically available to
the Dunhams. Based on the date they filed their claim with the HCADRO, October 14,
2016, the 180-day deadline to do so was April 12, 2017. Prior to that time, on March 8,
2017, the circuit court erroneously dismissed Dunham I, terminating the case and
preventing the Dunhams from properly filing a revised certificate in this case.14
Accordingly, on remand, upon the circuit court’s order granting an extension, the Dunhams
14
Although the Dunhams did file a new certificate using the same claim number as
the case that was dismissed, they do not cite any authority permitting them to do so. The
case law indicates that, once a case is dismissed for failure to comply with the filing
process, the claimant has the “opportunity to begin the process a new.” Walzer v. Osborne,
395 Md. 563, 584 (2006). “Anew” means “in a new or different form.” Merriam-
Webster’s Collegiate Dictionary 47 (11th ed. 2003). See also Puppolo, 215 Md. App. at
524 (after the initial complaint against the institutional defendant was dismissed, the
plaintiff refiled her claim in the HCADRO, waived arbitration, transferring the claim to
court, where it was consolidated with the initial complaint still pending against the
individual physician-defendant). In any event, if the Dunhams had been able, as they
allege, to file the new certificate in the initial action, the filing on April 24, 2017, 192 days
after they filed their initial claim, was outside the 180-day deadline, and therefore,
untimely.
31
will have 35 days to file a proper certificate, the number of days that remained in the 180-
day period when the court dismissed the case.15
IV.
Dunham II
As indicated, after Dunham I was dismissed, in addition to filing an appeal
contesting the propriety of its dismissal, the Dunhams also reopened the statement of claim
of Dunham I in the HCADRO to seek an extension of time to file a proper certificate. The
HCADRO granted them a 60-day extension to file a proper certificate, and after the second
certificate was filed, the claim was transferred to circuit court, which dismissed the action.
The Dunhams allege in this consolidated appeal that the court erred in dismissing Dunham
II.
Because the underlying claims in Dunham I and Dunham II are the same, and we
have granted the Dunhams relief in Dunham I, their claims with respect to Dunham II are
moot. See R.J. Reynolds Tobacco Co. v. Stidham, 448 Md. 497, 515 (2016) (“An appeal
is moot where there is no longer an existing controversy when the case comes before the
Court or when there is no longer an effective remedy the Court could grant.”). See also
Clark v. O’Malley, 434 Md. 171, 197 (2013) (where the Court affirmed the grant of
summary judgment, and therefore, there would be no trial or records to be introduced into
15
We express no opinion whether the revised certificate filed with the HCADRO
on April 24, 2017, complies with the requirements of the Act.
32
evidence, the issue whether the motion to intervene to have certain records sealed was
properly denied as moot). Accordingly, we will dismiss the appeal in Dunham II.
JUDGMENT OF THE CIRCUIT COURT
FOR BALTIMORE CITY AS TO DUNHAM
I VACATED AND REMANDED WITH
INSTRUCTIONS FOR THE CIRCUIT
COURT TO GIVE APPELLANTS 35 DAYS
TO FILE A PROPER CERTIFICATE.
APPEAL IN DUNHAM II DISMISSED AS
MOOT. COSTS TO BE PAID 50% BY
APPELLANTS AND 50% BY APPELLEES.
33