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Harris v. Lee-Pow

United States District Court, D. Maryland, Southern Division

April 13, 2015

CHERYL LEE-POW, D.C., et al., Defendants.


PAUL W. GRIMM, District Judge.

In this medical malpractice suit stemming from Defendants' chiropractic care that allegedly caused Plaintiff Alaina Harris to suffer a stroke, Ms. Harris retained Dr. Alan H. Bragman, D.C., a licensed doctor of chiropractic medicine, as her certifying expert. Defs.' Mem. 2, ECF No. 64-1; Pl.'s Opp'n 5-6, ECF No. 67-1. He certifies that Defendants Cheryl Lee-Pow and her solo chiropractic practice, POW-HER Chiropractic, LLC, provided improper care for Plaintiff that caused her injury. Certif. of Merit 1, Compl. Ex. 2, ECF No. 1-3. Defendants have moved to strike Dr. Bragman and his Certificate of Merit and to dismiss the case, on the basis that the expert does not qualify under the "Twenty Percent Rule" stated in Md. Code. Ann., Cts. & Jud. Proc. § 3-2A-04(b)(4).[1] Specifically, Defendants contend that Dr. Bragman "does not comply with his certification that he devotes less than twenty (20%) percent of his professional time annually to activities involving personal injury or medical malpractice litigation." Defs.' Mem. 2. Therefore, Defendants argue, "[t]he Certificate of Merit should be struck and the above-captioned matter should be dismissed because the Certificate of Merit is invalid." Id. Alternatively, they ask the Court to "[s]trike Dr. Bragman as the Certifying expert in this matter." Id. at 3. As discussed below, the motion to dismiss is not properly before me and will not be considered. Even if it were considered, along with the extrinsic evidence the parties attach to their briefing, it would not have merit because Defendants have not shown that Dr. Bragman devotes more than twenty percent of his professional activities to litigation-related activities. On that basis, I will deny Defendants' motion to strike.


The Maryland Healthcare Malpractice Claims Act ("HCMCA")[2] requires that a medical malpractice plaintiff in Maryland file a claim, accompanied by a "certificate of a qualified expert" ("Certificate of Merit" or "Certificate"), in the Health Care Alternative Dispute Resolution Office ("HCADRO") and waive arbitration prior to filing suit in state or federal court. See Md. Code Ann., Cts. & Jud. Proc. § 3-2a-04(b); Breslin v. Powell, 26 A.3d 878, 880 (Md. 2011); Carroll v. Konits, 929 A.2d 19, 25-28 (Md. 2007). The Certificate of Merit is "a certificate of a qualified expert " in which the expert "attest[s] to departure from standards of care, and that the departure from standards of care is the proximate cause of the alleged injury." Cts. & Jud. Proc. § 3-2A-04(b)(1)(i)(1) (emphasis added); see Carroll, 929 A.2d at 27. Relevantly, to be "qualified, " the certifying expert "may not devote annually more than 20 percent of the expert's professional activities to activities that directly involve testimony in personal injury claims." Cts. & Jud. Proc. § 3-2A-04(b)(4). This is referred to as the "Twenty Percent Rule." DeMuth v. Strong, 45 A.3d 898, 906 (Md. Ct. Spec. App. 2012).

Compliance with the Twenty Percent Rule is "necessary in order to have a proper Certificate, " and "failure to file a proper certificate is tantamount to not having filed a certificate at all.'" Breslin v. Powell, 26 A.3d 878, 893, 894 (Md. 2011) (quoting D'Angelo v. St. Agnes Healthcare, Inc., 853 A.2d 813, 822-23 (Md. Ct. Spec. App. 2004)). Thus, "a plaintiff could fail to file a certificate of a qualified expert, '" by "filing a certificate of an otherwise qualified expert who devotes more than twenty percent of his professional activities to testimony in personal injury cases." Id. at 894. "Because the Certificate is vital, an action in circuit court (or federal court) will be dismissed without prejudice if any of the Certificate's material requirements are not met." Id. at 898; see Cts. & Jud. Proc. 3-2A-04(b)(1)(i)(1) (stating that claim "shall be dismissed, without prejudice, if the claimant or plaintiff fails to file a [proper] certificate"); Kinsey v. Women's Surgery Ctr., LLC, 584 F.Supp.2d 746, 749 (D. Md. 2008) ("[P]laintiffs must comply fully [with the statutory requirements] or be subject to the mandatory sanction of dismissal without prejudice."). However, if the statute of limitations has run, as it has here, and "[t]he failure to file the certificate was neither willful nor the result of gross negligence, " then, "[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." Cts. & Jud. Proc. § 3-2A-04(b)(1)(ii).

This Court has dismissed claims without prejudice under the HCMCA where the Certificate has been invalid on its face. E.g., Zander v. United States, 843 F.Supp.2d 598, 605 (D. Md. 2012). Yet where, as here, the validity of a Certificate cannot be determined without discovery, complicated issues arise that this Court has not had the opportunity to address. For example, under the HCMCA, "[d]iscovery is available as to the basis of the certificate, " Cts. & Jud. Proc. § 3-2A-04(b)(3)(ii), and consideration of that evidence will not convert the motion to dismiss to a motion for summary judgment, Hinebaugh v. Garrett Cnty. Mem'l Hosp., 51 A.3d 673, 676 (Md. Ct. Spec. App. 2012) (citing Breslin, 26 A.3d at 892-95). But no such relevant exception exists in federal court to Rule 12(d)'s requirement that, where "matters outside the pleadings are presented to and not excluded by the court, " a Rule 12(b)(6) motion to dismiss must be treated as one for summary judgment and all parties must be given an opportunity to present "all the material that is pertinent to the motion." Fed.R.Civ.P. 12(d).[3] This requirement would contravene Maryland substantive law's requirement that "filing a Certificate of an expert that does not meet the requirements of CJ § 3-2A-02 requires dismissal, without prejudice, of the underlying claim, rather than the grant of summary judgment in favor of the defendant." Breslin, 26 A.3d at 880-81 (emphasis added).

I need not resolve this conflict because Defendants' Motion to Dismiss is not properly before me. I issued a Case Management Order that provides that "[n]o motions may be filed without first seeking a pre-motion conference with the Court." ECF No. 56. I held a conference, at the parties' request, on January 13, 2015, in which we discussed Dr. Bragman's qualifications, but I did not grant Defendant leave to file a motion to dismiss. Rather, I granted "Defendants' request to file a motion to strike Dr. Bragman's testimony as a certifying expert pursuant to the 20 percent rule." Ltr. Order, ECF No. 59 (emphasis added). Therefore, I will treat Defendants' motion solely as a motion to strike.[4]


A. The Mathematical Equation

As noted, Dr. Bragman is Plaintiff's certifying expert regarding Defendants' alleged departures from the standard of care Plaintiff should have received. Defs.' Mem. 2; Pl.'s Opp'n 5-6. Dr. Bragman states that he devotes less than 20 percent of his time to litigation-related activities. Pl.'s Opp'n 4 & n.1; Defs.'s Mem. 2. But, as Defendants see it, based on discovery on the subject, Dr. Bragman actually devotes more than 20 percent of his professional time to litigation-related activities, such that the Certificate was invalid, and consequently the Certificate should be struck. Defs.' Mem. 3.

To determine the percentage of time an expert devotes to litigation-related activities, the court "must perform a mathematical equation: [It] must identify those activities that directly involve testimony in personal injury claims' (the numerator) and then divide it by those activities that comprise the body of professional activities" in general (the denominator).'" Univ. of Md. Med. Sys. Corp. v. Waldt, 983 A.2d 112, 121 (Md. 2009) (citation omitted). The litigation-related activities in the numerator include

only (1) the time the doctor spends in, or traveling to or from, court or deposition for the purpose of testifying, waiting to testify, or observing events in preparation for testifying, (2) the time spent assisting an attorney or other member of a litigation team in developing or responding to interrogatories and other forms of discovery, (3) the time spent in reviewing notes and other materials, preparing reports, and conferring with attorneys, insurance adjusters, other members of a litigation team, the patient, or others after being informed that the doctor will likely be called upon to sign an affidavit or otherwise testify, and (4) the time spent on any similar activity that has a clear and direct relationship to testimony to be given by the doctor or the doctor's preparation to give testimony.

Id. at 121-22 (quoting Witte v. Azarian, 801 A.2d 160, 171 (Md. 2002)). As for the denominator,

for an individual's activities to qualify as "professional activity, " the activity must contribute to or advance the profession to which the individual belongs or involve the individual's active participation in that profession. In classifying "professional activities, " a distinction must be drawn between the hours spent ...

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