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Donnell Nance v. David A. Gordon

March 1, 2013

DONNELL NANCE
v.
DAVID A. GORDON, ET AL.



The opinion of the court was delivered by: Woodward, J.

REPORTED

Woodward, Berger, Davis, Arrie W. (Retired, Specially Assigned), JJ.

Opinion by Woodward, J.

Appellant, Donnell Nance, filed a medical malpractice action under the Health Care Malpractice Claims Act ("the Act"), Md. Code (1974, 2006 Repl. Vol., 2012 Supp.) §§ 3-2A- 01 to 3-2A-10 of the Courts and Judicial Proceedings Article ("CJP I"), against appellees, David A. Gordon, M.D., Larry Waskow, P.A., and Chesapeake Urology Associates, P.A. ("Chesapeake"). Dr. Gordon is a board certified urologist; Waskow is a urology physician's assistant; and Chesapeake is the professional association employing both Dr. Gordon and Waskow. In his statement of claim, appellant asserted that appellees' negligent care in 2005 was the proximate cause of his subsequent kidney failure.*fn1 Pursuant to § 3-2A-04(b) of the Act, appellant filed a Certificate of Qualified Expert from Stanley C. Jordan, M.D., who attested that appellees deviated from the standard of care by "[f]ailing to include nephritis on the differential diagnosis for [appellant] when he presented to the emergency department" complaining of blood in his urine in July of 2005.*fn2

In response, appellees filed a Motion to Dismiss or, in the Alternative, for Summary Judgment and argued that Dr. Jordan was not a "qualified expert" under the Act, because Dr. Jordan, a board certified nephrologist, was not in a "related specialty" to appellees. At a hearing before the Circuit Court for Baltimore City, the court found that Dr. Jordan "was not qualified to say what a urologist was able to do," and granted summary judgment in favor of appellees. The circuit court also denied appellant's subsequent motion for reconsideration.

On appeal, appellant presents two questions for our review, which we have rephrased:*fn3

1. Did the circuit court err when it concluded that appellant's medical expert was not qualified to testify under the Act?

2. If the circuit court did not err in concluding that appellant's medical expert was not qualified, did the circuit court err in granting summary judgment to appellees?

For the reasons we will explain, we answer the first question in the affirmative, and thus reverse the judgment of the circuit court and remand the case to that court for further proceedings. Consequently, we do not reach appellant's second question.

BACKGROUND

On June 2, 2005, appellant presented to (i.e., arrived at) the emergency department at Sinai Hospital in Baltimore, complaining of blood in his urine. Urinalysis taken at the hospital verified that appellant had gross hematuria (blood in urine), as well as proteinuria (protein in urine). Following these test results, appellant was prescribed antibiotics for what was diagnosed as a urinary tract infection and sent home.*fn4

On July 27, 2005, appellant, accompanied by his mother, again presented to the Sinai Hospital Emergency Department, complaining about blood in his urine. This time, appellant complained further of a fever, sore throat, and right flank pain. Waskow examined appellant. Waskow then called and spoke with Dr. Gordon to review appellant's presentation, and to discuss Waskow's examination, evaluation, and treatment plan. However, no physician ever conducted an in-person evaluation or examination of appellant for his symptoms that day. Again, appellant was sent home with antibiotics to treat a urinary tract infection.

Nearly two years later, on May 28, 2007, appellant presented to the Sinai Hospital Emergency Department, complaining that he was spitting up blood. Tests conducted at the hospital revealed that appellant's kidneys were no longer functioning. Physicians present noted that appellant had been doing "reasonably well" up until a few weeks before his May 2007 presentation, when he began experiencing flu-like symptoms. A renal biopsy revealed that appellant had late-stage IgA nephropathy, a severe kidney disease that requires appellant to undergo hemodialysis three times a week. Doctors concluded that the kidney disease had "progressed too long without treatment," and that the failure of appellant's kidneys was irreversible.

On April 17, 2009, appellant filed a Statement of Claim with the Health Care Alternative Dispute Resolution Office ("HCADRO"). In addition to his Statement of Claim, appellant also filed a Waiver of Arbitration. The HCADRO issued an Order of Transfer from its office to the circuit court on April 21, 2009. Appellant then filed a complaint in the circuit court on May 8, 2009.

Also accompanying appellant's April 17, 2009 Statement of Claim was Dr. Jordan's Certificate and attached report. Dr. Jordan is board certified in pediatric nephrology, pediatrics, and diagnostic laboratory immunology. In his Certificate, Dr. Jordan opined that appellees (among others) "departed from the standards of practice among members of the same health professions with similar training and experience situated in the same or similar communities" when they treated appellant in June and July 2005. In his report, which was attached to the Certificate, Dr. Jordan specifically stated that, in his professional opinion, appellees (among others) committed malpractice by "[f]ailing to include nephritis on the differential diagnosis for [appellant]" when he presented to the Sinai emergency room in June and July 2005. Dr. Jordan further opined that these deviations from standards of care proximately caused appellant's injuries and damages.

Following the close of discovery, on July 30, 2010, appellees filed a Motion to Dismiss, or in the Alternative, for Summary Judgment. In their motion, appellees argued, as relevant to this appeal, that Dr. Jordan was not a "qualified" expert, because he is not a board-certified urologist, and because he did not have relevant clinical or teaching experience in a "related field of health care" to urology. After appellant filed an opposition and appellees a reply, the circuit court held a hearing on appellees' motion on August 23, 2010. At the conclusion of the hearing, the court granted appellees' motion, ruling that Dr. Jordan "was not qualified to say what a urologist was able to do." The following day, the circuit court issued an order granting summary judgment in favor of appellees. On September 1, 2010, appellant filed a motion for reconsideration of the circuit court's order. The circuit court held a hearing on the motion on November 22, 2010, and denied appellant's motion. On the same day, the court issued a written order denying the motion for reconsideration and entering a final judgment in favor of appellees. A timely appeal followed. Additional facts will be set forth below as necessary to resolve the issues presented.

DISCUSSION

The instant appeal involves appellant's claim for medical malpractice under the Act, CJP I §§ 3-2A-01 to 3-2A-10. Appellant asserts that the appellees breached the applicable standard of care by failing to include nephritis in a differential diagnosis for appellant when he presented himself to appellees. Because appellant's claims are based on breach of the standard of care, appellant was required to file a "certificate of qualified expert"

("Certificate")*fn5 within 90 days of the date of filing his claim. See CJP I §§ 3-2A-04(b)(1). In appellant's claim for medical malpractice, as in all claims "filed on or after January 1, 2005," the Certificate is only proper if it complies with the further, specific requirements of section 3-2A-02(c)(2). Subparagraph 3-2A-02(c)(2)(ii) of the Act provides:

1. In addition to any other qualifications, a health care provider who attests in a certificate of a qualified expert or testifies in relation to a proceeding before a panel or court concerning a defendant's compliance with or departure from standards of care:

A. Shall have had clinical experience, provided consultation relating to clinical practice, or taught medicine in the defendant's specialty or a related field of health care, or in the field of health care in which the defendant provided care or treatment to the plaintiff, within 5 years of the date of the alleged act or omission giving rise to the cause of action; and

B. Except as provided in subsubparagraph 2 of this subparagraph, if the defendant is board certified in a specialty, shall be board certified in the same or a related specialty as the defendant.

2. Subsubparagraph 1B of this subparagraph does not apply if:

A. The defendant was providing care or treatment to the plaintiff unrelated to the area in which the defendant is board certified; or

B. The health care provider taught medicine in the defendant's specialty or a related field of health care.

CJP I § 3-2A-02(c)(2)(ii) (emphasis added).

"[I]t is not necessary for a certifying or testifying expert witness in a medical malpractice case to be the same kind of health care provider as the defendant." Hinebaugh v. Garrett Cnty. Mem'l Hosp., 207 Md. App. 1, 20 (2012). As the Act explains in subsubparagraphs 1A, 1B, and 2B, an expert need only satisfy certain professional qualifications in "the same or a related specialty [or field]" to submit a valid Certificate (subject to the remaining procedural requirements). CJP I §§ 3-2A-02(c)(2)(ii)-1A, -1B, -2B (emphasis added).*fn6

Appellant contends that "[t]he Circuit Court erred . . . because Dr. Jordan was qualified under the Health Care Malpractice Claims Act to express the opinion that [appellees] violated the standard of care in treating [appellant]." Appellant asserts that "specializing in the same medical field [as the defendant(s) in a medical malpractice suit] is not required" in order for an expert like Dr. Jordan to be qualified. Appellant then argues that "Dr. Jordan's Certificate of Qualified Expert, supporting Report, and deposition testimony established that ...


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