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Wilcox v. Orellano

Court of Special Appeals of Maryland

June 24, 2014

LYDIA G. WILCOX, ET AL.
v.
TRISTAN J. ORELLANO

Appeal from the Circuit Court for Prince George's County, Sean D. Wallace, Judge.

Argued by: Alan H. Silverberg (Summerfield, Willen, Silverberg & Limsky, LLC on the brief) all of Baltimore, MD. for Appellant.

Argued by: Dana K. Schultz (D. Lee Rutland, Wharton Levin Ehrmantraut & Klein PA on the brief) all of Annapolis, MD. for Appellee.

Panel: Krauser, C.J., Wright, White, Pamela J. (Specially Assigned), JJ. Opinion by Krauser, C.J.

OPINION

Page 128

[217 Md.App. 418] Krauser, C.J.

Subsection 5-119(b) of the Courts and Judicial Proceedings Article[1] permits a party, whose medical malpractice " action or claim" has been " dismissed once . . . without prejudice," because of that party's failure to attach a report of an attesting expert to the certificate of a qualified expert, to re-file that [217 Md.App. 419] " action or claim," so long as it is filed within 60 days from the date of dismissal, regardless of whether the statute of limitations has run. This " savings provision," [2] however, does not apply, under the preceding subsection of section 5-119, that is, subsection 5-119(a), or the " preclusion provision," which precludes the re-filing of a claim or action under the savings provision when the dismissal of the claim or action is a " voluntary dismissal of a civil action or claim by the party who commenced the action or claim."

This appeal requires us to decide whether Lydia Wilcox, appellant, may re-file, under the " savings provision," (§ 5-119(b)) her medical malpractice action against Tristan Orellano, M.D., appellee, when her initial medical malpractice action against Dr. Orellano was dismissed by a voluntary stipulation of dismissal signed by both sides to the controversy. The Circuit Court for Prince George's County concluded that that stipulation of dismissal amounted to " a voluntary dismissal . . . by

Page 129

the party who commenced the action or claim" under the " preclusion provision" (§ 5-119(a)) and dismissed her re-filed claim. We agree and shall affirm.

Background

Wilcox was referred to Tristan Orellano, M.D., a general surgeon, after an abnormal mammogram. A biopsy then performed by Dr. Orellano confirmed that Wilcox had breast cancer in her right breast. Wilcox thereafter elected to have a lumpectomy,[3] and Dr. Orellano performed that procedure.

During two successive post-operative visits with Dr. Orellano, Wilcox complained to the doctor of swelling, redness, and discomfort in her right breast at the site of the surgery. [217 Md.App. 420] Nonetheless, Dr. Orellano did not prescribe, according to Wilcox, any treatment for those problems. The swelling in Wilcox's right breast persisted and, eight months after the surgery, Wilcox's oncologist determined that she had developed an infection in her right breast at the site of the lumpectomy. For the next nine months, she reported daily to a hospital to have the dressing around the infection changed. But the infection only worsened, and eventually led to the surgical removal of her right breast.

Following that surgery, Wilcox filed a claim with the Health Care Alternative Dispute Resolution Office against Dr. Orellano, together with a certificate of a qualified expert, as required by section 3-2A-04(b) of the Health Care Malpractice Claims Statute.[4] Unfortunately, she failed to attach to the certificate a report of an attesting expert, as required by the same statute, and never sought to correct that mistake.

Ultimately, Wilcox waived arbitration of her claim and filed a complaint, in the Circuit Court for Howard County, against Dr. Orellano, alleging negligence, breach of contract, and loss of consortium, based on the post-operative care and treatment she had received from him. Dr. Orellano answered that complaint and then, three months later, moved to both strike [217 Md.App. 421] Wilcox's certificate of qualified expert and to dismiss Wilcox's complaint. Because Wilcox had ...


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