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Wilcox v. Orellano

Court of Appeals of Maryland

May 28, 2015

Lydia G. Wilcox, et al.,
Tristan J. Orellano

Argued: April 8, 2015

Circuit Court for Prince George’s County Case No. CAL10-15397

Barbera, C.J. Harrell Battaglia Greene Adkins McDonald Watts, JJ.

McDonald, J.

This case concerns the consequences of a voluntary dismissal of a medical malpractice action. The initial complaint filed by the plaintiff failed to comply with a statutory prerequisite for maintaining a medical malpractice action – the attachment of an expert report concerning the alleged malpractice. That defect would result in dismissal of the complaint under the statute governing malpractice actions. The plaintiff voluntarily dismissed the action, corrected the defect, and re-filed the action. In the meantime, the statute of limitations had expired well before the filing of the second action.

A statute specific to medical malpractice actions provides some relief from the statute of limitations when an initial complaint is dismissed for the particular defect that affected the plaintiff's complaint. However, the statutory savings provision does not apply in cases in which a plaintiff has voluntarily dismissed the prior complaint.

The Maryland Rules allow a plaintiff to voluntarily dismiss a complaint by filing a simple notice of dismissal before the defendant has answered the complaint. After an answer has been filed, the plaintiff can accomplish a voluntary dismissal only by obtaining the defendant's assent or the court's permission.

This case turns on whether it makes a difference that the voluntary dismissal in this case was effected by a stipulation of dismissal, necessary because the defendant had already answered the complaint, as opposed to a notice of dismissal. We hold that it does not and that the savings provision does not apply to any case in which there has been a voluntary dismissal.



A. Voluntary Dismissals

For various reasons, a plaintiff in a civil action may choose to dismiss a claim – or an entire complaint – voluntarily. The process that a plaintiff must follow to do so – and the consequences of the dismissal – varies according to the stage of the proceeding and whether the plaintiff has previously dismissed the same claim, as elaborated in Maryland Rule 2-506.[1] That rule, entitled "Voluntary Dismissal, " states in pertinent part:

(a) By notice of dismissal or stipulation. Except as otherwise provided in these rules or by statute, a party who has filed a complaint, counterclaim, cross-claim, or third-party claim may dismiss all or part of the claim without leave of court by filing (1) a notice of dismissal at any time before the adverse party files an answer or (2) a stipulation of dismissal signed by all parties to the claim being dismissed.
(c) By order of court. Except as provided in section (a) of this Rule, a party who has filed a complaint ... may dismiss the claim only by order of court and upon such terms and conditions as the court deems proper ....
(d) Effect. Unless otherwise specified in the notice of dismissal, stipulation, or order of court, a dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a party who has previously dismissed ... an action based on or including the same claim.

According to the plain language of the rule, a plaintiff may voluntarily dismiss a complaint in one of three ways: by a notice of dismissal, by a stipulation of dismissal, or by court order. State ex rel. Lennon v. Strazzella, 331 Md. 270, 275-76, 627 A.2d 1055 (1993). Thus, the concept of voluntary dismissal encompasses a stipulation of dismissal after an answer has been filed. Milburn v. Milburn, 142 Md.App. 518, 533, 790 A.2d 744 (2002). In fact, since the predecessor of Rule 2-506 was adopted in 1956, the Maryland Rules have consistently provided that a plaintiff may accomplish a voluntary dismissal by filing a stipulation of dismissal. See Maryland Rule 541(a)(2) (1956) (a party may voluntarily dismiss an action by "filing a stipulation of dismissal signed by all parties who have appeared in the action").[2] This aspect of Rule 2-506 is modeled after Federal Rule of Civil Procedure 41.[3]

As Rule 2-506 indicates, on the first occasion that a claim is voluntarily dismissed, the dismissal is "without prejudice" – i.e., it is not an adjudication on the merits that would, under the doctrine of res judicata, foreclose a plaintiff from refiling the action. (A second notice of dismissal, however, does operate as an adjudication on the merits and forecloses refiling.) It is well settled under the federal rule that, even though a dismissal is without prejudice, there is ordinarily no tolling of the statute of limitations and a plaintiff may be barred by limitations from re-filing an action that has been voluntarily dismissed "without prejudice." 9 Wright, Miller & Kane, Federal Practice & Procedure, §2367 (3d ed. 2008) ("[I]t seems well settled in the case law that the statute of limitations is not tolled by bringing an action that later is dismissed voluntarily under Rule 41(a)").[4] Thus, even though res judicata may not prevent a plaintiff who has voluntarily dismissed a claim from refiling the claim, the statute of limitations – if it has expired in the meantime – may do so. Although this Court has not had occasion to confirm that the same principle applies with respect to Rule 2-506, as with respect to the federal rule on which it is based, the Court of Special Appeals has characterized that conclusion as "[w]hat would seem to be certain to most"[5] and there is no evident reason to come to a contrary conclusion.

B. Bringing a Claim under the Health Care Malpractice Claims Act

The Health Care Malpractice Claims Act ("HCMCA"), codified at Maryland Code, Courts & Judicial Proceedings Article ("CJ"), §3-2A-01 et seq., establishes 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." CJ §3-2A-02(a)(1). The HCMCA creates a mandatory arbitration system for all medical malpractice claims alleging damages over a certain limit in order to weed out non-meritorious claims and reduce the costs of litigation. Walzer v. Osborne, 395 Md. 563, 582, 911 A.2d 427 (2006).

Pertinent to this case, the HCMCA sets forth the process that an individual must follow as a prerequisite to bringing a civil action in court. The individual must first file a claim with the Health Care Alternative Dispute Resolution Office ("HCADRO"). CJ §3-2A-04(a)(1)(i). The claimant must then file, within 90 days of filing the claim, a certificate of a qualified expert[6] with "a report of the attesting expert attached." CJ §3-2A-04(b)(1), (3).

The expert certificate and report must attest that the treatment in question departed from the standard of care and that the departure was the proximate cause of the claimant's alleged injury. CJ §3-2A-04(b)(1)(i).[7] (No certificate or report need be filed if the sole issue is lack of informed consent. CJ §3-2A-04(b)). The expert report is an integral part of the certificate – the failure to attach an expert report is tantamount to filing no certificate at all. Walzer, 395 Md. at 578-79. Defending parties, if they contest liability, must then file their own expert certificate and report attesting to their compliance with the standard of care. CJ §3-2A-04(b)(2), (3). The expert certificate and report requirement is a mechanism to reduce the number of frivolous claims by requiring the parties to substantiate the merit of their claims and defenses early in the process. See Carroll v. Konits, 400 Md. 167, 199-201, 929 A.2d 19 (2007) (1986 amendment adding expert certificate requirement to HCMCA was "intended to curtail frivolous malpractice claims").

Once the claimant has filed an expert certificate and report, the claimant may either proceed with arbitration or, in the alternative, unilaterally waive arbitration and file a complaint in a circuit court. See CJ §3-2A-06B.

A circuit court is to dismiss a complaint without prejudice if the claimant fails to timely file an expert certificate and report. CJ §3-2A-04(b)(1)(i); Walzer, 395 Md. at 578-79. Although the statute mandates that the dismissal be without prejudice, a claimant may be barred from refiling if the statute of limitations has expired in the interim. To ameliorate the possibility that a claim dismissed without prejudice for failure to file a timely certificate might be barred by the concurrent running of the limitations period, the statute includes several provisions for enlarging the period of time for filing the expert certificate and report.[8]Nevertheless, a failure to file both the certificate and report within the statutory period and any extension will result in dismissal of a complaint.

C. Limitations for Malpractice Actions

The Statute of Limitations – CJ §5-109

A medical malpractice claim must be filed within the earlier of five years from the date the injury was committed or three years from the date the injury was discovered. CJ §5-109(a). The filing of a claim with HCADRO in accordance with CJ §3-2A-04 constitutes the filing of an action for statute of limitations purposes. CJ §5-109(d).

The Savings Provision – CJ §5-119

CJ § 5-119 provides a limited exception to the limitations period when a civil action or claim has been dismissed once for failure to file an expert report in accordance with CJ §3-2A-04(b)(3). In full, CJ §5-119 states:

(a) (1) This section does not apply to a voluntary dismissal of a civil action or claim by the party who commenced the action or claim.
(2) This section applies only to a civil action or claim that is dismissed once for failure to file a report in accordance with § 3-2A-04(b)(3) of this article.
(b) If a civil action or claim is commenced by a party within the applicable period of limitations and is dismissed without prejudice, the party may commence a new civil action or claim for the same cause against the same party or parties on or before the later of:
(1) The expiration of the applicable period of limitations;
(2) 60 days from the date of the dismissal; or
(3) August 1, 2007, if the action or claim was dismissed on or after November 17, 2006, but before June 1, 2007.

Thus, if a claimant commences a medical malpractice claim within the period of limitations and the claim is dismissed without prejudice for failure to file an expert report, the claimant has up to 60 days to file a new civil action for the same cause against the same parties, even if the statute of limitations has otherwise run in the interim. This grace period does not apply, however, when there is a voluntary dismissal by the plaintiff.

The issue in this case is whether a plaintiff is precluded under CJ §5-119(a)(1) from refiling a dismissed claim under CJ §5-119(b) when the voluntary dismissal is effected by a stipulation of dismissal. In other words, does the exclusion in CJ §5-119(a)(1) of a "voluntary dismissal of a civil action or claim by the party who commenced the action" encompass a voluntary dismissal by stipulation signed by all the parties?

D. Ms. Wilcox's Claim

Alleged malpractice

Petitioner Lydia Wilcox[9] was referred to Respondent Tristan Orellano, a physician who practices general surgery, for treatment of suspected breast cancer in September 2004.[10]A biopsy confirmed the existence of cancer and Dr. Orellano performed an operation on her right breast on October 26, 2004.

After the surgery, Ms. Wilcox experienced swelling and redness in her right breast. Her radiation oncologist was unable to begin radiation treatment because of the swelling and placed Ms. Wilcox on antibiotics to treat a suspected infection. Ms. Wilcox called Dr. Orellano twice in December 2004 complaining of the swelling and discomfort and discussed the swelling and redness at an appointment with him that month. Dr. Orellano advised her to remain on the antibiotics, wear a support bra, and seek further follow-up treatment with her radiation oncologist. Dr. Orellano did not prescribe any treatment. Ms. Wilcox last visited Dr. Orellano on January 26, 2005, when he again noted the continued swelling and redness and her inability to commence radiation treatment but prescribed no treatment.

In March 2005, Ms. Wilcox moved to North Carolina and began seeing a new radiation oncologist. Ms. Wilcox received radiation therapy but the swelling and redness continued. In June 2005, tests confirmed that she had a MRSA infection.[11] The infection grew worse, and additional infections developed, necessitating treatment in August and September 2005. Ms. Wilcox was required to visit a medical facility on a daily basis for approximately nine months for treatment of the infected areas. On March 17, 2006, Ms. Wilcox had surgery to resolve the infections.[12]

First Claim and Voluntary Dismissal

Ms. Wilcox first filed a claim against Dr. Orellano with HCADRO on June 12, 2008. HCADRO granted an automatic 90-day extension under CJ §3-2A-04(b)(1)(ii), which allowed Ms. Wilcox a total of 180 days from June 12, 2008 to early December to file an expert certificate and report. Ms. Wilcox requested and obtained an additional extension until December 26, 2008. On December 23, 2008 – three days before the expiration of that extension – Ms. Wilcox filed a certificate of a qualified expert, but did not attach an expert report.

Ms. Wilcox then waived arbitration and filed a complaint in the Circuit Court for Howard County on May 14, 2009. The complaint alleged that Dr. Orellano was negligent in failing to diagnose and treat her post-surgical infection and included counts of negligence, breach of contract, and loss of consortium. Ms. Wilcox did not allege that Dr. Orellano was negligent in performing the initial surgery or that he had chosen an inappropriate surgical procedure. Dr. Orellano answered the complaint a month later.

In September 2009, Dr. Orellano moved to dismiss the complaint for failure to attach an expert report as required by CJ §3-2A-04(b)(3). On October 14, 2009, before the court considered that motion, Ms. Wilcox voluntarily dismissed the complaint. Because an answer had already been filed, she needed to obtain the assent of Dr. Orellano. A stipulation of dismissal signed by the attorneys for both parties was filed to effectuate the voluntary dismissal.

Second Claim and Dismissal on Limitations Grounds

Approximately a week after Ms. Wilcox dismissed her complaint in the Circuit Court for Howard County, she filed a second claim against Dr. Orellano with HCADRO. This claim not only alleged that Dr. Orellano was negligent in failing to treat her post-surgical infection, as her original claim had alleged, but also included new allegations that Dr. Orellano had been negligent in performing the surgery – in particular, that he had undertaken a surgical procedure greater in scope than had been recommended by Ms. Wilcox's treating oncologist and thereby increased the risk of infection. This time, Ms. Wilcox's claim was accompanied by an expert certificate with an expert report attached.

In April 2010, Ms. Wilcox waived arbitration as to her second claim. On May 14, 2010, she filed a three-count complaint that was similar to her first complaint and that also included the new claim of negligence related to her initial surgery. This time, however, she filed suit in the Circuit Court for Prince George's County instead of the Circuit Court for Howard County.

Dr. Orellano moved to dismiss the complaint on limitations grounds. The Circuit Court initially denied that motion. The Circuit Court held that Ms. Wilcox's claim accrued by March 2006, at the latest, and therefore her claim had to be filed by March 2009. The Circuit Court reasoned that even though the second claim was not filed until October 2009, it was not barred by the statute of limitations because it was essentially an extension of the first claim filed in June 2008.

Dr. Orellano sought reconsideration of his motion to dismiss after the Court of Special Appeals held, in Bi v. Gibson, 205 Md.App. 263, 45 A.3d 305 (2012), that, if a civil action is voluntarily dismissed pursuant to Rule 2-506(a), any subsequent similar action must still be filed within the applicable period of limitations. In other words, the filing of the initial complaint did not toll limitations with respect to the second, similar complaint.[13] The Circuit Court reconsidered and dismissed the complaint. The Circuit Court concluded that the statute of limitations expired at the latest in March 2009 and, given that Ms. Wilcox's second claim was not filed until October 2009, her complaint based on that claim was untimely. The court concluded that her second claim did not come within the scope of CJ §5-119(b) because she had voluntarily dismissed her first complaint and under CJ §5-119(a)(1), the grace period did not apply.

Ms. Wilcox appealed the dismissal of her second complaint. The Court of Special Appeals affirmed the decision of the Circuit Court in a reported decision. 217 Md.App. 417, 94 A.3d 127 (2014). We then granted a writ of certiorari to consider whether CJ §5-119 provides relief from the running of limitations in these circumstances.



A. Standard of Review

This case presents a question of statutory interpretation. As indicated above, Ms. Wilcox asserts that her initial medical malpractice claim was filed within the period of limitations.[14] Her second claim, which was initiated in October 2009 after dismissal of the first, was filed after the period of limitations would ordinarily expire. There is no dispute that CJ §5-119(b) may provide relief from the expiration of the statute of limitations for up to 60 days when a timely-filed medical malpractice claim is dismissed without prejudice for failure to file an expert report. And there is no dispute that this grace period is not available in cases in which an initial complaint has been voluntarily dismissed. The only issue concerns the interpretation of CJ §5-119(a)(1) – in particular, whether it forecloses application of the grace period in CJ §5-119(b) when a plaintiff in a medical malpractice action voluntarily dismisses a complaint by means of a stipulation of dismissal, as opposed to a notice of dismissal. As this is a question of law, we accord no special deference to the decisions of the Circuit Court or Court of Special Appeals.

B. Whether the Savings Provision of CJ §5-119 Applies

As noted above, CJ §5-119(a)(1) provides that "[t]his section does not apply to a voluntary dismissal of a civil action or claim by the party who commenced the action or claim." (emphasis added). Ms. Wilcox voluntarily dismissed her initial action in the only way that she could without court permission, as Rule 2-506(a) requires the assent of the opposing party for a voluntary dismissal after an answer has been filed. Under a straightforward reading of CJ §5-119(a)(1), the savings provision of CJ §5-119(b) does not apply in this case because there was a "voluntary dismissal [of that action] by the party who commenced the action."

Ms. Wilcox advances two arguments why we should not read the statute this way. First, she argues that the reference to "voluntary dismissal" in paragraph (a)(1) only encompasses a voluntary dismissal by a plaintiff without the assent of the opposing party – i.e., only a voluntary dismissal effected before the filing of an answer. Second, she argues that paragraph (a)(2) of the statute – which limits the savings provision to medical malpractice actions – somehow frees her case from the limitation of paragraph (a)(1). In our view, neither argument has merit.

Whether the usual definition of "voluntary dismissal" applies for purposes of (a)(1)

Ms. Wilcox asserts that, given the statute's remedial purpose of saving certain medical malpractice claims from the operation of the statute of limitations, the phrase "voluntary dismissal ... by the party who commenced the action or claim" in paragraph (a)(1) should be construed to apply only to a voluntary dismissal accomplished unilaterally by the plaintiff. However, the statute does not include its own special definition for "voluntary dismissal." In the absence of a special definition, we assume the Legislature used the phrase in accordance with its ordinary meaning. Tatum v. Gigliotti, 321 Md. 623, 628, 583 A.2d 1062 (1991). In particular, when a phrase in a statute refers to a specific procedural mechanism, we presume that reference to be to the ordinary understanding of the procedural term. See Dean v. Pinder, 312 Md. 154, 161, 538 A.2d 1184 (1988) ("when the term in a statute is a legal term, absent any legislative intent to the contrary, the term is presumed to be used in its legal sense").

The longstanding Maryland rule on voluntary dismissals by "a party who has filed a complaint" encompasses a dismissal by stipulation after an answer has been filed. That was certainly the case when CJ §5-119 was enacted in 2007. Chapter 324, Laws of Maryland 2007. The Legislature is presumed to be aware of the rule concerning voluntary dismissals by plaintiffs and, because the Legislature did not indicate to the contrary in the statute, it follows that the Legislature did not intend for some other meaning to apply for purposes of paragraph (a)(1).[15] A review of the legislative files relating to the enactment of CJ §5-119 discloses no indication that the Legislature intended any special or peculiar meaning of "voluntary dismissal."[16]

Ms. Wilcox notes that the consequence of employing the usual meaning of "voluntary dismissal" in the interpretation of paragraph (a)(1) is that the grace period in CJ §5-119(b) does not apply unless the claim has been dismissed by a court at the behest of the opposing party. Ms. Wilcox argues that this result "flouts common sense" and that it could not have been the Legislature's intent to require a court to effect the dismissal because it is more efficient, both for the litigators and the court, to permit the parties to dismiss the claim by stipulation when it is clear that a dismissal is mandated. Ms. Wilcox argues that requiring judicial action to activate the savings provision wastes judicial resources and increases the cost of litigation, contrary to the purpose of the HCMCA. We are unpersuaded for several reasons.

First, Ms. Wilcox's argument is really a policy argument for allowing all voluntary dismissals based on a defective expert certificate to have the benefit of the savings provision – in other words, the Legislature should not have included paragraph (a)(1) in CJ §5-119 at all. That is not our call.

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