Lewis v. Waletzky

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1251
KATHERINE M. LEWIS,
Plaintiff – Appellant,
v.
JEREMY P. WALETZKY,
Defendant – Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:07-cv-02154-PJM)
Argued: March 23, 2010 Decided: April 30, 2010
Before NIEMEYER and SHEDD, Circuit Judges, and James A. BEATY,
Jr., Chief United States District Judge for the Middle District
of North Carolina, sitting by designation.
Order of Certification of a question of law to the Court of
Appeals of Maryland.
ARGUED: Paul McCourt Curley, CANFIELD, BAER, HELLER, LLP,
Richmond, Virginia, for Appellant. H. Kenneth Armstrong,
ARMSTRONG, DONOHUE, CEPPOS & VAUGHAN, CHTD, Rockville, Maryland,
for Appellee. ON BRIEF: Erica C. Mudd, ARMSTRONG, DONOHUE,
CEPPOS & VAUGHAN, CHTD, Rockville, Maryland, for Appellee.
PER CURIAM:
Katherine Lewis appeals from the dismissal of her complaint
and from the district court’s denial of her motion to
reconsider. In her complaint, Lewis alleges that Dr. Jeremy
Waletzky, a Maryland-licensed psychiatrist, committed medical
malpractice by prescribing to her certain antipsychotic
medications during her psychiatric care and treatment. Because
Lewis alleges that her injury occurred in Washington, D.C. (“the
District”), the District’s law would normally apply under
Maryland’s lex loci delicti rule. However, the district court,
under the public policy exception to lex loci delicti, applied
Maryland law and dismissed the complaint without prejudice
because Lewis failed to comply with the mandatory requirements
of Maryland’s Health Care Malpractice Claims Act (“the Maryland
Act”). See Md. Code Ann., Cts. & Jud. Proc., §§ 3-2A-01, et seq.
Pursuant to Md. Code Ann., Cts. & Jud. Proc., §§ 12-605 and
12-606, we now certify the following question of Maryland law to
the Court of Appeals of Maryland:
Does Maryland recognize the public policy exception,
or any other exception, to lex loci delicti based on
the Maryland Health Care Malpractice Claims Act, see
Md. Code Ann., Cts. & Jud. Proc., §§ 3-2A-01, et seq.,
which requires a plaintiff to comply with certain
mandatory administrative filings prior to filing a
medical malpractice lawsuit in a Maryland court?
The answer to this question, which is outcome determinative
of this appeal, does not appear to be directly controlled by any
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Maryland appellate decision, constitutional provision, or
statute. We acknowledge that the Court of Appeals of Maryland
may reformulate this question. We also emphasize that this
question is premised on the factual allegations of Katherine
Lewis’ complaint which, as explained below, indicate (1) that
Jeremy Waletzky provided medical treatment in the state of
Maryland to Katherine Lewis; (2) the current lawsuit was brought
in federal court in the District of Maryland; and (3) the last
act to complete the alleged tort – the injury – was sustained in
the District.
Counsel of record for Katherine Lewis is Paul M. Curley,
Canfield Baer, LLP, 2201 Libbie Avenue, Suite 200, Richmond,
Virginia, 23230. Counsel of record for Jeremy Waletzky is
Kenneth Armstrong and Erica C. Mudd, Armstrong, Donohue, Ceppos
& Vaughan, Chartered, 204 Monroe Street, Suite 101, Rockville,
Maryland, 20850.
I.
Lewis alleges the following facts in her complaint which,
for purposes of this appeal, are not disputed. See GE Inv.
Private Placement Partners II v. Parker, 247 F.3d 543, 546 (4th
Cir. 2001) (noting that because the case was dismissed pursuant
to Rule 12(b), “we assume the facts alleged in the complaint are
true”).
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Lewis, once a resident of the District and currently a
resident of Minnesota was formerly a patient of Waletzky.
(Compl. ¶ 1 & 6). Waletzky, at all times relevant, was a
physician licensed to practice in the State of Maryland and had
his office in Chevy Chase or Bethesda, Maryland. (Compl. ¶ 2).
From approximately October 2000 until January 2005, Waletzky was
Lewis’ psychiatrist and treated her at his Chevy Chase office.
(Compl. ¶ 6). Waletzky prescribed several psychotropic
medications to Lewis, including antidepressants and stimulants,
and also prescribed antipsychotic and/or neuroleptic drugs.
(Compl. ¶ 7). All of the prescribed medications were filled in
pharmacies in the District and ingested by Lewis while she was
in the District. Id.
During the treatment period, Waletzky did not diagnose
Lewis with any serious mental disorder and never made any
diagnosis of Lewis’ psychiatric condition. (Compl. ¶ 8). After
taking the prescribed antipsychotics, Lewis began experiencing
adverse side effects and discontinued her use of these
medications. (Compl. ¶ 9). Immediately after experiencing
these adverse side effects, Lewis suffered, for the first time
in her life, an anxiety attack. Id. She contacted Waletzky who
instructed her to continue taking the antipsychotic medications
and wrote her additional prescriptions in order for her to
“taper off” the antipsychotic medications. Id. While she was
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“tapering off” the antipsychotic medications, Lewis continued to
experience adverse side effects, including extreme jaw tension
and clenching, anxiety, and other effects. Id. After
completely withdrawing from the antipsychotic drugs, Lewis’ side
effects persisted and worsened, and she was eventually diagnosed
with a permanent neurological disorder known as Tardive
Dyskinesia/Dystonia caused by the antipsychotics she had taken.
Id.
II.
Lewis filed this action in the United States District Court
for the District of Maryland alleging the medications Waletzky
prescribed were inappropriate for her condition, and his
treatment breached the standard of care applicable to the use of
antipsychotic drugs. Waletzky then moved to dismiss the
complaint. Following briefing, the district court, in a written
opinion, granted the motion and dismissed the case without
prejudice. The district court subsequently denied Lewis’ motion
for reconsideration.
Waletzky’s motion to dismiss was based on Lewis’ failure to
file her claims with Maryland’s Health Care Alternative Dispute
Resolution Office as a “condition precedent” to bringing suit.
See Md. Code Ann., Cts. & Jud. Proc. § 3-2A-02; see also,
Rowland v. Patterson, 882 F.2d 97, 99 (4th Cir. 1989) (en banc)
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(noting that “Maryland's statutory requirement of arbitration as
a precondition to legal action . . . must be honored by federal
courts”). Lewis, however, argued that under Maryland’s rule of
lex loci delicti the law of the District should apply and,
therefore, she did not have to comply with the Maryland Act in
order to proceed with her claim. The district court, relying on
Lab. Corp. of Am. v. Hood, 911 A.2d 841, 848-51 (Md. 2006),
found that although under the lex loci delicti rule, the law of
the District would normally apply, the law of Maryland applies
because the application of the District’s law violates a “clear,
strong, and important Maryland public policy.” Because it found
that the law of Maryland should apply, the district court
dismissed Lewis’ complaint without prejudice for failure to
comply with the Maryland Act’s mandatory requirements.
III.
On appeal, Lewis contends that the district court erred in
holding under Maryland’s lex loci delicti rule that the law of
the place of injury – the District – is not the appropriate law
to apply. Lewis also contends that although the Maryland Court
of Appeals has recognized the public policy exception, it has
never applied it in tort cases. See e.g., Erie Insurance
Exchange v. Heffernan, 925 A.2d 636, 653-58 (Md. 2007) (holding
that the public policy exception to lex loci delicti did not
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require application of the Maryland cap on non-economic damages
or Maryland law on contributory negligence).
In an action based upon diversity of citizenship, as here,
the district court must apply the substantive law of the state
in which it sits, including the state’s choice of law rules.
See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97
(1941). Maryland adheres to the lex loci delicti rule in
analyzing choice of law problems with respect to tort causes of
action. Erie Insurance Exchange, 925 A.2d at 648-49. Under lex
loci delicti, “where the events giving rise to a tort action
occur in more than one State, we apply the law of the State
where the injury – the last event required to constitute the
tort – occurred.” Lab. Corp. of Am., 911 A.2d at 845.
Although lex loci delicti dictates that the law of the place of
injury is to be applied, the Court of Appeals of Maryland has
recognized a public policy exception to this general rule that
will apply the law of Maryland if the application of the law of
the place of the injury violates a “clear, strong, and important
Maryland public policy.” Id. at 851.
No Maryland appellate decision, constitutional provision,
or statute appears to address the precise question presented in
this case. The answer to the certified question is outcome
determinative of this appeal because Lewis’ claim may go forward
only if, under lex loci delicti, the District’s law should be
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applied. 1 Therefore, the question is properly subject to review
by the Court of Appeals of Maryland on certification. 2
IV.
Accordingly, pursuant to the privilege made available by
the Maryland Uniform Certification of Questions of Law Act, we
hereby ORDER: (1) that the question stated above be certified to
the Court of Appeals of Maryland for answer; (2) that the Clerk
of this Court forward to the Court of Appeals of Maryland, under
the official seal of this Court, a copy of this Order, together
with the original or copies of the record before this Court to
the extent requested by the Court of Appeals of Maryland; and
(3) that the Clerk of this Court fulfill any request for all or
part of the record simply upon notification from the Clerk of
the Court of Appeals of Maryland.
QUESTION CERTIFIED
1
Lewis argues that even though this case was dismissed
without prejudice, she may nevertheless be without a remedy if
the public policy exception to the lex loci delicti rule applies
because of the statute of limitations.
2
Lewis contends that the decision in Erie Insurance
Exchange, 925 A.2d 636, dictates that the law of the District
should apply. However, because the facts and circumstances of
Erie Insurance Exchange are distinguishable from the facts of
this case, we are not convinced that it is controlling.
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