SHELIA DAVIS et al.
FROSTBURG FACILITY OPERATIONS, LLC d/b/a FROSTBURG VILLAGE
Argued: October 5, 2017
Court for Allegany County Case No.: 01-C-14-041332
Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten,
decide, once again, whether claims for negligence and related
claims have alleged a "medical injury" within the
meaning of the Health Care Malpractice Claims Act
("Health Claims Act" or "HCA"). Md. Code
(1974, 2013 Repl. Vol.), §§ 3-2A-01, et seq. of the
Courts and Judicial Proceedings Article ("CJP").
Petitioners Shelia Davis and her husband Robert Davis, sued
Frostburg Facility Operations, LLC ("Frostburg")
for injuries Ms. Davis allegedly sustained while staying at
one of Frostburg's facilities. If the plaintiffs alleged
a medical injury within coverage of the Health Claims Act,
they were required to file those claims in the Health Care
Alternative Dispute Resolute Office ("ADR Office")
as a condition precedent to their action in the Circuit Court
for Allegany County. If not, the plaintiffs were free to file
their claim as a non-medical negligence suit in the Circuit
issued a writ of certiorari to consider two questions, which
we have rephrased for clarity:
1. Did the trial court err in dismissing Petitioners'
claims for failure to first file in the ADR Office?
2. Did the trial court properly dismiss the remainder of the
that two of Davis's counts alleged medical injuries
within the HCA, and the trial court properly dismissed those
counts. The remaining negligence count did not allege a
breach of a professional standard of care, and should
survive. The counts sounding in Contract, Consumer
Protection, and Loss of Consortium also survive dismissal.
Shelia Davis and her husband Robert Davis, filed a Complaint
against Frostburg Facility Operations, LLC
("Frostburg") in the Circuit Court for Allegany
County. Davis complained of injuries suffered during her stay
at Frostburg's nursing care facility while recovering
from back surgery. Her alleged injuries followed two separate
accidents at Frostburg. First, while she slept, she fell from
her bed-allegedly as a result of Frostburg's failure to
properly secure her mattress to the bed frame. Davis waited
on the floor approximately 45 minutes for a nurse to assist
her. When she finally arrived, the nurse retrieved a
mechanical lift and used that to raise Davis off the floor,
intending to return her smoothly to the bed. But, in another
mishap-while Davis was suspended, but not yet over her
bed-the lift released and dropped her again onto the hard
surface of the floor.
events occurred on October 26, 2011. Davis filed her
Complaint on October 23, 2014-just three days before
Maryland's general statute of limitations would have
barred her claim. CJP § 5-101. Frostburg responded with a
Motion to Dismiss.
argued that Davis's claims failed as a matter of law
because she did not file her claims in the ADR Office
pursuant to CJP § 3-2A-04(a)(1)(i). Frostburg also moved
to dismiss Davis's claims for breach of contract and
violation of the Maryland Consumer Protection Act
("CPA") for failure to state a claim for which
relief can be granted. Before the trial court could rule on
Frostburg's motion, Davis filed an Amended Complaint
pursuant to Maryland Rule 2-341. Frostburg renewed its Motion
to Dismiss, contending that Davis failed to remedy the
deficiencies in her Complaint. Before the trial court ruled
on Frostburg's motion, Davis filed a Second Amended
Complaint-the subject of this appeal.
amended her factual allegations to emphasize the non-medical
nature of her claims. Specifically, she alleged that the
Frostburg facility also served as a "residence"
during her stay there. She averred that she was not receiving
medical services when her mattress came loose, causing her
first fall to the floor, or when she was dropped by the nurse
in an effort to return Davis to the bed. Regarding the first
fall, Davis alleged that she was "simply lying in
bed." As to the second fall, Davis similarly alleged
that her injuries resulted after the nurse "simply
attempt[ed] to return [her] to her bed." Her Complaint
included six Counts entitled: (1) Negligence; (2) Negligence;
(3) Negligence Respondeat Superior; (4) Breach of
Contract; (5) "False Advertising/Consumer
Protection;" and (6) Loss of Consortium.
One related solely to Davis's initial fall from her bed
as she slept. She alleged that Frostburg owed her "the
duty to exercise reasonable care in providing a bed to her
that was safe for ordinary use." Frostburg breached this
duty by "negligently and recklessly failing to properly
attach Ms. Davis's mattress to the bed frame . . .
." Count Two related solely to her fall from the
mechanical lift as the nurse attempted to return her to the
bed. Davis alleged that Frostburg owed her "the duty to
exercise reasonable care in providing mechanical lifts . . .
that were safe for ordinary use, " but breached this
duty by "negligently and recklessly providing a
mechanical lift that malfunctioned . . . ." Count Three,
for Negligence Respondeat Superior, also related
only to Davis's fall from the mechanical lift. Davis
alleged that Frostburg had a duty "to exercise
reasonable care in returning her to her bed." The nurse,
a Frostburg employee acting in the scope of employment,
"negligently and recklessly released Ms. Davis from the
mechanical lift . . . ." Davis also alleged-in Counts
One, Two, and Three-that her injuries did not result from
Frostburg's rendering or failure to render health care.
Arguing that Davis's claims sounded in medical
malpractice, Frostburg moved to dismiss the Second Amended
Complaint because Davis failed to satisfy the "condition
precedent" of filing her claims in the ADR Office
according to CJP § 3-2A-04(a)(1)(i).
the trial judge granted Frostburg's Motion to Dismiss,
Davis timely appealed. In an unreported opinion, the Court of
Special Appeals affirmed the trial court's decision to
dismiss the entire complaint. Davis v. Frostburg Facility
Operations, LLC, No. 540, 2017 WL 383454 (Md. Ct. Spec.
App. Jan. 27, 2017). The intermediate appellate court
affirmed dismissal of Davis's negligence claims and
concluded that they alleged a "medical injury"
within the HCA. Id. at *5-6. The Court also affirmed
dismissal of Davis's remaining claims because they were
too closely related to claims subject to the HCA.
Id. at *6-7.
makes two arguments before this Court. First, she argues that
the Complaint did not set forth claims of medical negligence
and, therefore, the trial court improperly dismissed her
Complaint for failure to first file in the ADR Office.
Second, Davis contends that the trial court also improperly
dismissed the remaining counts of her Complaint for a failure
to state a claim upon which relief can be granted.
standard of review of the grant or denial of a motion to
dismiss is whether the trial court was legally correct.
RRC Ne., LLC v. BAA Maryland, Inc., 413 Md. 638,
643- 44 (2010). In reviewing the ruling on the motion to
dismiss, "we accept all well-pled facts in the
complaint, and reasonable inferences drawn from them, in a
light most favorable to the non-moving party."
Converge Servs. Grp., LLC v. Curran, 383 Md. 462,
475 (2004). When examining the pertinent facts, the Court
limits its analysis to the "four corners of the
complaint . . . ." State Ctr., LLC v. Lexington
Charles Ltd. P'ship, 438 Md. 451, 497 (2014)
(cleaned up). The pleader must set forth a cause of
action with sufficient specificity-"'bald assertions
and conclusory statements by the pleader will not
suffice.'" Id. (quoting RRC Ne.,
413 Md. at 644).
contends that Davis has alleged a breach of a professional
standard of care and should have first filed her claims in
the ADR Office as required by CJP § 3-2A-04(a)(1)(i).
The General Assembly enacted this statute as one part of the
Health Claims Act. An analysis of the HCA and the General
Assembly's objective in enacting the legislation provides
a helpful guidepost as we navigate whether the trial court
properly dismissed Davis's claims.
General Assembly adopted the Health Claims Act as a process
for weeding out meritless claims and resolving disputes
involving medical care. In the mid-1970s, Maryland's
medical care providers faced a malpractice insurance
shortage. See, e.g., St. Paul Fire
& Marine Ins. Co. v. Ins. Comm'r, 275 Md. 130,
132-33 (1975). The General Assembly enacted the HCA to
encourage insurance carriers to provide coverage for Maryland
physicians. See Attorney General v. Johnson, 282 Md.
274, 280-81 (1978) overruled on other grounds by Newell
v. Richards, 323 Md. 717, 734 (1991). The legislation
created a claim arbitration system requiring all plaintiffs
alleging a medical injury to submit an expert certification
of the claim before the case could go forward. See
id. at 277, 279-80. The HCA's purpose "is
to screen malpractice claims, ferret out meritless ones, and,
in theory, thereby lower the cost of malpractice insurance
and the overall costs of health care." Adler v.
Hyman, 334 Md. 568, 575 (1994).
sets out several requirements for a malpractice plaintiff. A
plaintiff claiming a "medical injury" committed by
a "health care provider" and more than $30, 000 in
damages must first file their claims with the ADR Office. CJP
§ 3-2A-02(a)(1). The HCA defines "medical
injury" as an "injury arising or resulting from the
rendering or failure to render health care."
Id. § 3-2A-01(g). A "health care
a hospital, a related institution as defined in §
19-301 of the Health-General Article, a medical
day care center, a hospice care program, an assisted living
program, a freestanding ambulatory care facility as defined
in § 19-3B-01 of the Health-General Article, a
physician, an osteopath, an optometrist, a chiropractor, a
registered or licensed practical nurse, a dentist, a
podiatrist, a psychologist, a licensed certified social
worker-clinical, and a physical therapist, licensed or
authorized to provide one or more health care services in
Id. § 3-2A-01(f)(1) (footnotes added).
filed in the ADR Office, the claim is subject to non-binding
arbitration. Id. § 3-2A-04. We characterize
this arbitration as non-binding because the plaintiff, or any
other party, may unilaterally waive the arbitration
requirement after meeting certain conditions outlined in the
statute. Id. § 3-2A-06B.
plaintiff must also file, within 90 days of initially
submitting a claim, an expert certification of the claim
before unilateral waiver is permitted. Id. §
3-2A-04(b)(1)(i). The claims certification must include a
report prepared by the same expert. This requirement reflects
the General Assembly's desire to root out
"nonmeritorious medical malpractice claims."
D'Angelo v. St. Agnes Healthcare Inc., 157
Md.App. 631, 645 (2004). The expert certification requirement
can also assist the parties in evaluating the merits of
health claims and defenses. Walzer v. Osborne, 395
Md. 563, 583-84 (2006).
the expert certification is filed, either party can make a
speedy exit from the ADR process. CJP § 3-2A-06B(b)(1).
Indeed, most claimants elect to proceed to circuit court
after satisfying compliance with the expert certification and
report requirement. See A. Thomas Pedroni & Ruth
F. Vadi, Mandatory Arbitration or Mediation of Health
Care Liability Claims?, 39 Md. B. J. 54, 56 (Mar./Apr.
2006) ("The vast majority of current medical malpractice
cases go directly to circuit court in this system.").
Despite this unilateral waiver provision, the General
Assembly, in passing the HCA, sought to maximize the number
of claims submitted to binding arbitration. Id.
(citing Carrion v. Linzey, 342 Md. 266, 287 (1996)).
first considered the scope of the HCA, and whether a claim
must be submitted to arbitration in Cannon v. McKen,
296 Md. 27 (1983). Cannon suffered severe injuries while at
her dentist's office. Dr. McKen owned the building that
housed his dental practice. As Cannon sat in an examination
chair, a large piece of x-ray equipment fell off the wall
upon which it was ...