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Dunham v. University of Maryland Medical Center

Court of Special Appeals of Maryland

June 28, 2018

STANLEY DUNHAM, et al.
v.
UNIVERSITY OF MARYLAND MEDICAL CENTER, et al.

          Circuit Court for Baltimore City Case Nos. 24-C-16-006500 24-C-17-002662

          Eyler, Deborah S., Graeff, Nazarian, JJ. [*]

          OPINION

          GRAEFF, J.

         This consolidated appeal arises from a medical malpractice action filed by appellants, Stanley and Renee Dunham, against the University of Maryland Medical Center, LLC ("UMMC"), Maryland General Hospital, Inc., d/b/a University of Maryland Medical Center Midtown Campus ("Midtown"), and the University of Maryland Medical System Corporation ("UMMS") (collectively, appellees). The Dunhams allege that appellees breached the standard of care in failing to implement procedures to prevent pressure ulcers from developing and/or progressing and failing to treat the pressure ulcers once they developed.

         The claim initially was filed in the Health Care Alternative Dispute Resolution Office ("HCADRO") and transferred to the Circuit Court for Baltimore City, which granted appellees' motion to strike the certificate of qualified expert and motion to dismiss, without prejudice ("Dunham I"). Mr. and Mrs. Dunham appealed the dismissal of Dunham I.

         The Dunhams then filed in the HCADRO, using the same claim number as the initial claim, a motion for extension of time for filing a certificate of qualified expert. The HCADRO granted an extension, the Dunhams filed a second certificate, and the claim was transferred to the circuit court, which again dismissed the claim ("Dunham II").

         On appeal from the rulings in Dunham I and Dunham II, Mr. and Mrs. Dunham present the following questions for this Court's review, which we have rephrased slightly, as follows:

1. Did the circuit court err in dismissing Dunham I for failure to identify individual health care providers in the certificate of qualified expert, even though the only defendants were the named institutional health care providers?
2. Did the circuit court err in Dunham I in failing to grant the Dunhams an extension to file a proper certificate of qualified expert pursuant to Md. Code (2013 Repl. Vol.) § 3-2A-04(b)(1)(ii) of the Courts and Judicial Proceedings Article ("CJP"), in lieu of dismissing the case?
3. Did the circuit court err in dismissing Dunham II on the basis of res judicata when no final judgment had been entered in Dunham I?

         For the reasons set forth below, we shall vacate the judgment of the circuit court in Dunham I and dismiss as moot the appeal in Dunham II.

         FACTUAL AND PROCEDURAL BACKGROUND Medical Care

         This is a medical malpractice action relating to the care of Mr. Dunham from October 28, 2013, through February 6, 2014. Because the issues on appeal are procedural in nature and do not involve the merits of the underlying dispute, we provide only a brief synopsis of Mr. Dunham's medical history, as set forth in the pleadings.

         On October 28, 2013, Mr. Dunham was admitted to UMMC for a medical procedure to replace his aortic heart valve. Upon his admission, he was "assessed using the Braden Scale for predicting pressure ulcer risk and was given a score of less than 15," which indicated that Mr. Dunham was "at a high risk for developing pressure ulcers."

         Following the completion of his medical procedure, Mr. Dunham's medical care was complicated by hypotension, and he later required treatment for ESBL Klebsiella pneumonia, which ultimately resulted in a tracheostomy.[1] Mr. Dunham was in the intensive care unit at UMMC until November 15, 2013.

         On November 2, 2013, during his stay at UMMC, Mr. Dunham began developing bilateral pressure ulcers on his buttocks. By November 5, the ulcers had worsened, resulting in skin tears and peeling, and by November 11, Mr. Dunham had "full thickness skin necrosis."

         On November 15, 2013, Mr. Dunham was transferred to Midtown for further care to address the pressure ulcers. On February 6, 2014, after receiving additional treatment for the pressure ulcers, he was discharged with instructions to receive intravenous antibiotics and continue at-home wound care.

         Procedural History

         Dunham I

         On October 14, 2016, Mr. and Mrs. Dunham filed a statement of claim with the HCADRO "alleging medical negligence on the part of [UMMC], Midtown, and UMMS" relating to the development and progression of pressure ulcers. On November 16, 2016, Mr. and Mrs. Dunham filed a certificate of qualified expert and report ("certificate") and then waived arbitration.[2]

         The certificate, completed by Antonios P. Gasparis, M.D., stated, in pertinent part:

Based upon my review of this matter, and upon my knowledge, training, and experience in the field of vascular surgery and wound care, and as set forth more fully in the attached Report, it is my opinion to a reasonable degree of medical probability that Health Care Providers, University of Maryland Medical Center, LLC, Maryland General Hospital, Inc, d/b/a University of Maryland Medical Center Midtown Campus, and University of Maryland Medical System Corporation, through their agents, servants, and/or employees, breached the applicable standard of care in their care and treatment of Stanley Dunham in and around October 28, 2013 through February 6, 2014, and that these breaches of the standard of care caused injury to Mr. Dunham.

         Although the certificate named UMMC, Midtown, and UMMS, "through their agents, servants, and/or employees," as responsible for the breach of the standard of care, which caused Mr. Dunham's injury, it did not identify the specific agents, servants, or employees whose care was at issue. In his corresponding report, Dr. Gasparis again identified the health care providers generally as UMMC, Midtown, and UMMS, "through their agents, servants, and/or employees," without specifying which of appellees' individual health care providers he believed to have provided deficient care.[3]

         On December 1, 2016, after the Dunhams waived arbitration and the HCADRO issued an order of transfer, Mr. and Mrs. Dunham filed a two-count complaint against appellees, case number 24-C-16-006500 ("Dunham I"). The first count asserted a claim of negligence, alleging that appellees, and their "agents, servants, and employees," owed a duty to Mr. Dunham to "render and provide health care within the ordinary standards of medical, hospital and nursing care," to exercise care in its selection of personnel, and to supervise and provide patients with treatment "commensurate with the condition from which the patient suffers." It alleged that appellees and their agents were under a duty to provide care "in accordance with the standards of practice among members of the nursing profession," but the "actions and inactions of the [appellees], through their agents, servants, and employees, breached the applicable standards of nursing care," and as a result of the negligence of appellees, "acting through their agents, servants and employees, Mr. Dunham suffered severe and permanent injuries." The second count alleged loss of consortium, incorporating the allegations set forth in the first count and stating that the damages were caused by "the wrongful acts and omissions of the [appellees] directly and by and through their actual and apparent agents, servants, and/or employees."

         On February 2, 2017, appellees filed a Motion to Strike Plaintiffs' Certificate of Merit and Report and Motion to Dismiss and Request for Hearing. They argued that Dr. Gasparis' certificate and report "fail[ed] to meet the mandatory minimum requirements set forth by the Health Care Malpractice Claims Act" because they "fail[ed] to identify by name [or specialty] any licensed professional health care provider(s) at [UMMC], [Midtown], and [UMMS] who [we]re alleged to have breached the standard of care." Appellees also argued that a proper certificate and report was an "'indispensable step' and a condition precedent to the medical malpractice process," and "when a plaintiff fails to file an appropriate certificate and report, her case must be dismissed by the Circuit Court."

         The Dunhams filed an opposition, asserting that their certificate sufficiently stated the health care providers that breached the standard of care, noting that the health care institutions were named. The Dunhams argued that the certificate was not required "to identify specific agents when a Defendant is an institutional agency."

         The Dunhams also argued that the certificate and report "contain[ed] sufficient detail to allow for the [appellees] to identify which, of their own agents, servants and/or employees, treated [Mr. Dunham] throughout his lengthy, five (5) month admissions." In that regard, they asserted that it was "wholly unreasonable" to expect them "to identify the multitude of physicians and nursing staff who attended to [Mr. Dunham]" because, "[l]ike most medical charts, [Mr. Dunham's] record [was] replete with illegible handwritten notes that [were] impossible to decipher."

         Alternatively, Mr. and Mrs. Dunham argued that, if the court was persuaded that the certificate and report were deficient, the court was required to grant a 90-day extension to file an amended certificate pursuant to CJP § 3-2A-04(b)(1)(ii).[4] The Dunhams asserted that the extension was a matter of right and was not discretionary.

         In reply, appellees reiterated their argument that it was the Dunhams' burden to identify the individual licensed professionals whose care was criticized in the certificate. They argued that, by naming only corporate entities, appellees were "unable to determine which of the thousands of licensed professionals that act as their employees, agents, and/or servants [were] being criticized for allegedly breaching the applicable standard of care." Appellees disputed the claim that the medical records were "impossible to decipher," asserting that they had provided electronic medical records, which "clearly identified in type-written format" many of the individual licensed professionals providing care to Mr. Dunham.

         Appellees also argued that the Dunhams were not entitled to an extension to file a proper certificate. They asserted that, because filing a proper certificate was a condition precedent to filing suit, the court did not have jurisdiction over the case or have authority to grant an extension, and Mr. and Mrs. Dunham had to return to the HCADRO to refile their claim.[5]

         On March 8, 2017, the court held a motions hearing on appellees' motion to strike the certificate and dismiss the case. That same day, the court issued its ruling, stating as follows:

In the case at bar, there is no specificity, nor mention of any particular licensed healthcare provider who allegedly violated the standard of care. The Court does not find that identifying only the listed [appellees] in the certificate meets the required standards of specificity to determine whether any particular physician violated the standard of care. The Court is satisfied that, as filed, the certificate is deficient and does not comport with the statute on Maryland law.

         The court then addressed Mr. and Mrs. Dunham's contention that they should be permitted an extension to file a conforming certificate. It stated:

The Court notes the Plaintiffs have stated to the Court, if it is inclined to grant the request to dismiss, then under CJP [§] 3-2A-04(b)(1)(ii), the Court is required to grant a mandatory extension of no more than 90 days of filing the certificate [] if the limitations period applicable to the claim or action has expired, and the failure to file the certificate was neither willful, nor the result of gross negligence.
The Court has reviewed Puppolo v. Adventist Healthcare, and also notes that the court, also referring to D'Angelo, noted that the failure to file a proper certificate is tantamount to not having filed a certificate at all.
The Court notes that one was filed in this particular case, but to apply CJP [§ 3-2A-04(b)(1)(ii)] under the circumstances would not be consistent with what this Court believes was the intention of the legislature. Plaintiffs objectively would have the opportunity to file the bald [certificate] and then when it is found to be insufficient by the Court, ask for a do over. The Court does not find that to be appropriate. As such, without a proper certificate, the Court finds that the matter should not be in the Circuit Court. Again, if the Plaintiffs so choose, they may file with HCADRO [where] there . . . can be a determination whether limitations have been expired, . . . whether the limitations have been tolled, or whether the failure to file a proper certificate is neither willful, nor the result of gross negligence.
The Court, therefore, will grant the motion to strike the certification and motion to dismiss will be granted without prejudice.
On April 10, 2017, Mr. and Mrs. Dunham appealed the dismissal of Dunham I.

         Dunham II

         On March 17, 2017, approximately one week after the circuit court's ruling in Dunham I, and prior to filing an appeal from that ruling, the Dunhams filed with the HCADRO a Motion for Extension of Time For Filing of a Certificate of Qualified Expert. In this pleading, they used the same claim number as that assigned to their initial claim in Dunham I.

         The Dunhams asserted that they were entitled to a 90-day extension to file a proper certificate, arguing that the HCADRO had jurisdiction over the action because the effect of the certificate being deficient was that the court never obtained jurisdiction of the claim, which "remained in HCADRO during this time." They also asserted that the failure to file a proper certificate was neither willful nor the result of gross negligence because they were "unable to identify specific heath care providers due to the illegibility of the Health Care Providers' own agents' handwriting," but on March 6, 2017, they "finally received the full medical chart from the Health Care Providers," which contained electronic entries that were easily ascertainable.

         Appellees argued that the Dunhams could not reopen the statement of claim underlying Dunham I after waiving arbitration. They asserted that the filing of a certificate, proper or not, was a condition precedent to filing in court, and once arbitration was waived, the circuit court properly obtained jurisdiction of the matter.[6] Appellees argued that, once the court dismissed the claim, Mr. and Mrs. Dunham were required to file a "new claim with a new claim number" in the HCADRO, rather than use the same claim number as before, because the transfer of the claim in Dunham I to the court removed the matter from the HCADRO's jurisdiction.

         Appellees alternatively argued that no good cause existed for an extension because, contrary to the Dunhams' assertion, appellees had produced, prior to suit being filed, records that included hand written notes and Electronic Medical Records ("EMR"), which contained chart records in electronic and typewritten format, including the names of "many of the individual licensed professionals that cared for Mr. Dunham."[7] Additionally, appellees asserted that, even if the individual identity of particular individuals could not be ascertained from the medical records, Mr. and Mrs. Dunham could have "identified particular specialties and specific dates, times, actions or inactions in the medical records that [were] claimed to constitute a breach of the standard of care."

         On April 13, 2017, the HCADRO ordered that Mr. and Mrs. Dunham be granted a 60-day extension to file a proper certificate. It found that it had the authority to grant an extension because the claim "was never properly transferred to the Circuit Court for Baltimore City due to the Claimant's failure to file a proper [certificate] with the [HCADRO]," and therefore, the HCADRO "retained jurisdiction of this claim due to the improper transfer." It concluded that an extension was warranted because the statute of limitations had expired, the Dunhams' failure to ...


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