Dunham v. Univ. of Md. Medical Ctr.

Stanley Dunham, et al. v. University of Maryland Med. Ctr., et al., Nos. 260 & 1443,

September Term, 2017

MEDICAL MALPRACTICE; CERTIFICATE OF QUALFIED EXPERT; HEALTH

CARE PROVIDER WHO BREACHED STANDARD OF CARE MUST BE

IDENTIFIED; EXTENSION TO FILE PROPER CERTIFICATE OF QUALFIED

EXPERT

Pursuant to the Healthcare Malpractice Claims Act (the “Act”), Md. Code (2013 Repl.

Vol.) §§ 3-2A-01 et seq. of the Courts and Judicial Proceedings Article (“CJP”), a person

with a medical malpractice claim must file a certificate of qualified expert within 90 days

after the person files a statement of claim with the Health Care Alternative Dispute

Resolution Office (“HCADRO”). CJP § 3-2A-04(b)(1)(i)1. The certificate of qualified

expert must “mention explicitly the name of the licensed professional who allegedly

breached the standard of care.” Carroll v. Konits, 400 Md. 167, 196 (2007). Accord Retina

Grp. of Wash., P.C. v. Crosetto, __ Md. App. __, No. 2385, Sept. Term, 2016, slip op. at

17 (filed Apr. 27, 2018). If the certificate of qualified expert fails to comply with the filing

requirements of the Act, the “‘failure to file a proper certificate is tantamount to not having

filed a certificate at all.’” Puppolo v. Adventist Healthcare, Inc., 215 Md. App. 517, 532

(2013) (quoting D’Angelo v. St. Agnes Healthcare, Inc., 157 Md. App. 631, 645 (2004)).

If a certificate of qualified expert is not filed, as required, within the 90 days following the

filing of a statement of claim, the Act mandates dismissal, without prejudice, unless the

person obtains a statutory extension of time to file the certification. Walzer v. Osborne,

395 Md. 563, 575-76 (2006). The statutory extension sought here was pursuant to CJP §

3-2A-04(b)(1)(ii), which states that, “[i]n lieu of dismissing a claim or action,” “the court

shall grant an extension of no more than 90 days for filing the certificate required,” if two

conditions are shown, i.e., “[t]he limitations period applicable to the claim or action has

expired,” and “[t]he failure to file the certificate was neither willful nor the result of gross

negligence.”

When the two enumerated conditions are met, this provision is mandatory and is granted

automatically in lieu of dismissal. The extension, however, is limited. Pursuant to the

automatic extension made available by CJP § 3-2A-04(b)(1)(ii), a plaintiff must file a

proper certificate of qualified expert within the second 90-day period. If a proper certificate

of qualified expert is not filed within this combined 180-day period provided by the Act, a

medical malpractice claim is properly dismissed.

Here, the certificate of qualified expert filed with the statement of claim in Dunham I stated

that appellees, acting through their agents, servants, or employees, breached the standard

of care, but it did not specifically identify any individuals who breached the standard of

care. The certificate of qualified expert, therefore, failed to conform to the filing

requirements of the Act. Because the applicable limitations period for the claim had

expired, there was no allegation that the failure to file a proper certificate of qualified expert

was willful or the result of gross negligence, and there were 35 days left in the 180-day

time period to file a proper certificate, the court erred in dismissing Dunham I.

Circuit Court for Baltimore City

Case Nos. 24-C-16-006500

24-C-17-002662

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

Nos. 260 & 1443

September Term, 2017

______________________________________

STANLEY DUNHAM, et al.

v.

UNIVERSITY OF MARYLAND MEDICAL

CENTER, et al.

______________________________________

Eyler, Deborah S.,

Graeff,

Nazarian,

JJ.*

______________________________________

Opinion by Graeff, J.

______________________________________

Filed: June 28, 2018

* Judge Kevin F. Arthur did not participate in the

Court’s decision to designate this opinion for

publication pursuant to Md. Rule 8-605.1.

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

2

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,

1

ESBL stands for extended spectrum beta-lactamase producers, which are

organisms resistant to certain antibiotics. Gail Bennett RN, MSN, CIC, Multi-drug

Resistant Organisms (MDROs) in Healthcare Facilities, https://perma.cc/UH2G-M3GN

(last visited May 14, 2018).

3

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

2

As discussed infra, the Healthcare Malpractice Claims Act (the “Act”), Md. Code

(2013 Repl. Vol.) §§ 3-2A-01 et seq., of the Courts and Judicial Proceedings Article

(“CJP”) establishes the procedures required for filing a medical malpractice claim against

a health care provider. Retina Grp. of Wash., P.C. v. Crosetto, __ Md. App. __, No. 2385,

Sept. Term, 2016, slip op. at 14 (filed Apr. 27, 2018). CJP § 3-2A-04(b)(1)(i) requires that

a plaintiff “file a certificate of a qualified expert . . . attesting to [the] departure from

standards of care, and that the departure from standards of care is the proximate cause of

the alleged injury, within 90 days from the date of the complaint.” CJP § 3-2A-04(b)(3)(i)

further provides that the certificate of a qualified expert shall be filed “with a report of the

attesting expert attached.” The filing of a proper certificate of a qualified expert and report

is an “‘indispensable step,’” and a claim cannot be maintained without it. Puppolo v.

Adventist Healthcare, Inc., 215 Md. App. 517, 528 (2013) (quoting Breslin v. Powell, 421

Md. 266, 290 n. 20 (2011)).

4

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,

3

In the report, Dr. Gasparis explained the breach of the standard of care as follows:

[I]n failing to implement appropriate interventions to prevent pressure ulcers;

in failing to render appropriate treatment to prevent the development and

progression of pressure ulcers; in failing to timely implement appropriate

procedures in the early course of the development of pressure ulcers to

prevent their progression; in failing to render appropriate treatment of

pressure ulcers; in failing to perform daily wound care assessments; in failing

to timely relieve pressure of the Claimant to prevent pressure ulcers and/or

prevent such ulcers from progressing; in failing to turn and reposition the

Claimant on a regular and scheduled basis to prevent pressure ulcers and/or

prevent such ulcers from progressing; in failing to provide a proper pressure

redistribution surface; and, among other things, in failing to properly dress

and/or medicate developing pressure ulcers in their early stages.

5

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

6

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.

4

Section 3-2A-04 provides that a person having a claim against a health care

provider for damage due to a medical injury shall file a claim with the Director of the

Health Care Alternative Dispute Resolution Office, § 3-2A-04(a). Section 3-2A-

04(b)(1)(i) further provides that an action shall be dismissed, without prejudice, if the

plaintiff fails to file a certificate of a qualified expert with the Director within 90 days from

the date of the claim, which attests to the departure from standard of care, and that the

departure from standard of care is the proximate cause of the alleged injury. Section 3-2A-

04(b)(1)(ii) provides:

In lieu of dismissing the claim or action, the panel chairman or the

court shall grant an extension of no more than 90 days for filing the certificate

required by this paragraph, if:

1. The limitations period applicable to the claim or action has expired;

and

2. The failure to file the certificate was neither willful nor the result of

gross negligence.

7

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.

5

Mr. Dunham was discharged from the hospital on February 6, 2014, and as counsel

for the Dunhams conceded at oral argument, the statute of limitations had expired by March

8, 2017, the date of the hearing.

8

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.

9

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

6

We note that this argument was inconsistent with that made to the circuit court,

where appellees argued that the Dunhams were not entitled to an extension because filing

a proper certificate was a condition precedent to filing suit, and without a proper certificate,

the court did not have jurisdiction over the case or have authority to grant an extension.

10

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 file a certificate “was neither willful nor

the result of gross negligence,” and there was “good cause for an extension.”

7

Appellees specifically stated that nursing notes and assessments included names

of individuals providing care.

11

On April 24, 2017, again using the same claim number as the statement of claim

underlying the court action in Dunham I, Mr. and Mrs. Dunham filed a second certificate

and report with the HCADRO. This certificate stated that appellees, through their agents,

servants, and/or employees, including but not limited to 29 listed individuals, breached the

standard of care. Mr. and Mrs. Dunham then elected to waive arbitration to refile their

claim in circuit court. On April 27, 2017, the HCADRO issued an order transferring the

matter to circuit court.

On May 12, 2017, Mr. and Mrs. Dunham filed another complaint in the circuit court,

case number 24-C-17-002662 (“Dunham II”), asserting the same two causes of action

raised in Dunham I against appellees. The only substantive change from the complaint

filed in Dunham I was an allegation in the body of the complaint of Dunham II, which

identified 29 individuals, consistent with the names identified in the second certificate, who

were alleged to have provided deficient care.8

On June 23, 2017, appellees moved to strike the complaint, asserting that the case

“ha[d] already been filed, litigated and argued” in the circuit court, it was pending on

appeal, and therefore, the circuit court did not have “jurisdiction over this case.” They

asserted that Mr. and Mrs. Dunham had improperly “re-opened their Statement of Claim”

in the HCADRO, which had no jurisdiction to act on the request.

8

In Dunham II, Mr. and Mrs. Dunham named only appellees as defendants. They

did not name any of the individual health care providers identified therein as individual

defendants.

12

Mr. and Mrs. Dunham opposed appellees’ motion to strike, and in the alternative,

they sought a stay of Dunham II. They first argued that the HCADRO “retained jurisdiction

over this case” after the claim was transferred to circuit court because the court “directed

to do so.” Second, they argued that they were not asking the court to address the sufficiency

of the certificate at issue on appeal in Dunham I, but rather, they “brought a new case”

seeking damages. Finally, Mr. and Mrs. Dunham requested that, if the court was not

inclined to deny appellees’ motion, it stay the matter pending the outcome of the appeal of

Dunham I.

On August 18, 2017, the court held a hearing on appellees’ motion to strike the

complaint filed in Dunham II. The parties reiterated the arguments in their written

pleadings. In response to the court’s question whether this was a “parallel related case” or

“a duplicate case,” counsel for the Dunhams stated that it was not a duplicate case “in the

sense that [there was] a new case number” and a new certificate “that had changed the

posture of the case.” Counsel also asserted that, if the court granted a stay and ruled that

the court had jurisdiction over the claim, counsel would dismiss the appeal.

At the end of the hearing, the court stated that it was “inclined to grant the motion”

to strike the complaint, but it was going to re-read a case before issuing its order. In an

order entered on August 24, 2017, the court dismissed Dunham II. It made the following

findings:

FOUND that the parties agree that the claim at issue in this case is the

same claim that was at issue in case number 24-C-16-006500, that it involves

the same parties and the same causes of action, and it is further

13

FOUND that the court’s March 8, 2017 decision to dismiss all claims

in case number 24-C-16-006500 is currently pending appellate review in the

Court of Special Appeals, and it is further

FOUND that the principles of res judicata apply to bar action in the

matter currently pending in this court, based upon the final judgment issued

in case number 24-C-16-006500 and the fact that the matter is currently

pending appellate review, and it is further

FOUND that the application of the statute of limitations may serve to

bar the instant action if it is treated as a “new” claim rather than the

“reopening” of the original claim as Plaintiffs assert that it is, and it is further

FOUND that no protective action in this matter will preserve the

claims if, in fact, the limitations period has expired on the substantive claim,

and it is further

FOUND that the Plaintiff[s] may be successful in preserving the

underlying claim through litigation of case number 24-C-16-006500 in the

appellate court.

The court then ordered, as follows:

ORDERED that Plaintiff’s [sic] Motion to Stay [] is DENIED, and

it is further

ORDERED that the Defendant’s [sic] Motion to Strike [], which this

Court shall treat as a Motion to Dismiss, is GRANTED on the basis of res

judicata.

Mr. and Mrs. Dunham appealed the dismissal of Dunham II, which was consolidated

with the appeal of Dunham I.

STANDARD OF REVIEW

Our review of the court’s decision in this case involves the court’s grant of motions

to dismiss, as well as questions of statutory interpretation, and therefore, our review is de

novo. See Breslin v. Powell, 421 Md. 266, 277 (2011) (where an order “involves an

14

interpretation and application of Maryland statutory and case law,” appellate courts “must

determine whether the lower court’s conclusions are ‘legally correct’ under a [non-

deferential] standard of review.”) (quoting Walter v. Gunter, 367 Md. 386, 392 (2001));

Advance Telecom Process LLC v. DSFederal, Inc., 224 Md. App. 164, 173 (2015) (“‘We

review the grant of a motion to dismiss de novo.’”) (quoting Unger v. Berger, 214 Md.

App. 426, 432 (2013)).

DISCUSSION

I.

Healthcare Malpractice Claims Act

Before addressing appellant’s specific contentions on appeal, we address briefly the

provisions of the Healthcare Malpractice Claims Act (the “Act”), CJP §§ 3-2A-01 et seq.

The Act, in general, “governs 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.’” Puppolo v. Adventist Healthcare, Inc., 215 Md. App. 517, 526 (2013) (quoting

CJP § 3-2A-02(a)(1)). Accord Retina Grp. of Wash., P.C. v. Crosetto, __ Md. App. __,

No. 2385, Sept. Term, 2016, slip op. at 14 (filed Apr. 27, 2018). To initiate a claim under

the Act, “‘a person with a medical malpractice claim [must] first file that claim with the

Director of the [HCADRO].’” Walzer v. Osborne, 395 Md. 563, 575 (2006) (quoting

Edward W. McCready Mem’l Hosp. v. Hauser, 330 Md. 497, 500-01 (1993)). Within 90

days after filing a claim with the HCADRO, the plaintiff “‘must file a certificate of

15

qualified expert . . . attesting to a defendant’s departure from the relevant standards of care

which proximately cause the plaintiff’s injury.’” Id. (quoting McCready, 330 Md. at 501).

See CJP § 3-2A-04(b)(1)(i)1.

After filing the certificate, the plaintiff can waive arbitration and file suit in the

circuit court. CJP § 3-2A-06B(b)(1); Crosetto, slip op. at 15. As this Court recently

explained, however, “[a]lthough the certificate is a condition precedent to filing a medical

malpractice case in circuit court, failure to satisfy that condition does not . . . divest the

court of subject matter jurisdiction.” Crosetto, slip op. at 15 n. 9. Accord Kearney v.

Berger, 416 Md. 628, 660 n.13 (2010) (“We have . . . explicitly rejected the notion that

failure to satisfy the [Act’s] procedures divests a trial court of subject matter jurisdiction.”).

The purpose of the health claims arbitration process and the certificate requirement

is “‘to weed out non-meritorious claims and reduce the costs of litigation.’” Crosetto, slip

op. at 16 (quoting Wilcox v. Orellano, 443 Md. 177, 184 (2015)). Accord Carroll v. Konits,

400 Md. 167, 176 (2007) (the statute is “an attempt by the General Assembly, in substantial

part, to limit the filing of frivolous malpractice claims.”); Puppolo, 215 Md. App. at 531

(“The purpose of the HCMCA is to ‘weed out’ unmeritorious malpractice claims.”)

(quoting D’Angelo v. St. Agnes Healthcare, Inc., 157 Md. App. 631, 645 (2004)).

Accordingly, the plaintiff’s “certificate of qualified expert must include information

necessary for evaluating whether the defendant breached the standard of care.” Kearney,

416 Md. at 651. It must “mention explicitly the name of the licensed professional who

allegedly breached the standard of care.” Carroll, 400 Md. at 196. Accord Crosetto, slip

16

op. at 17 (the certificate must identify with specificity the licensed professional(s) who

breached the standard of care).

Requiring a medical malpractice claimant to identify the health care providers who

allegedly provided deficient care is both “consistent with the General Assembly’s intent to

avoid non-meritorious claims” and “reasonable because the Certificate would be rendered

useless without an identification of the allegedly negligent parties.” Carroll, 400 Md. at

196. “When a Certificate does not identify, with some specificity, the person whose actions

should be evaluated, it would be impossible for the opposing party, the HCADRO, and the

courts to evaluate whether a physician, or a particular physician out of several, breached

the standard of care.” Id. The “‘failure to file a proper certificate is tantamount to not

having filed a certificate at all.’” Puppolo, 215 Md. App. at 532 (quoting D’Angelo, 157

Md. App. at 645).

If a plaintiff fails to file an expert’s certificate, as required, the Act mandates

dismissal, without prejudice, “‘unless the plaintiff obtains one of three statutory extensions

of the time to file an expert’s certificate.’” Walzer, 395 Md. at 575-76 (quoting McCready,

330 Md. at 501). Two statutory provisions involve an extension based on “good cause.”9

9

CJP § 3-2A-04(b)(5) states that “[a]n extension of the time allowed for filing a

certificate of a qualified expert under this subsection shall be granted for good cause

shown.” CJP § 3-2A-05(j) provides: “Except for time limitations pertaining to the filing

of a claim or response, the Director or the panel chairman, for good cause shown, may

lengthen or shorten the time limitations prescribed in subsections (b) and (g) of this section

and § 3-2A-04 of this subtitle.” The Dunhams did not seek an extension in the circuit court

based on either of these provisions.

17

The extension the Dunhams sought in circuit court was pursuant to CJP § 3-2A-04(b),

which provides, in pertinent part, as follows:

Unless the sole issue in the claim is lack of informed consent:

(1) (i) 1. Except as provided in item (ii) of this paragraph, a claim

or action filed after July 1, 1986, shall be dismissed, without prejudice, if the

claimant or plaintiff fails to file a certificate of a qualified expert with the

Director attesting to departure from standards of care, and that the departure

from standards of care is the proximate cause of the alleged injury, within 90

days from the date of the complaint;

***

(ii) In lieu of dismissing the claim or action, the panel chairman or

the court shall grant an extension of no more than 90 days for filing the

certificate required by this paragraph, if:

1. The limitations period applicable to the claim or action

has expired; and

2. The failure to file the certificate was neither willful nor

the result of gross negligence.

CJP § 3-2A-04(b).

II.

Dunham I

Mr. and Mrs. Dunham contend that the circuit court erred in dismissing Dunham I.

In support, they make two arguments. First, they argue that “Maryland law does not require

a certificate of qualified expert to name an individual, licensed health care provider when

allegations involve direct corporate liability.” Second, they argue that the Act does not

18

require a certificate “to identify specific agents when a defendant is an institutional

agency.”

Appellees disagree. They contend that the court properly dismissed Dunham I.

A.

Direct Corporate Liability

The Dunhams argue that “a hospital can be directly negligent for the care

administered to its patients,” and pursuant to the doctrine of “corporate negligence,” a

hospital may be liable without “a showing of negligence of any heath care provider.”

Accordingly, they assert that they “should not be required to name a licensed, individual

provider in their [certificate] when their negligence claim does not rely upon the actions or

inactions of an individual, licensed provider.”

Appellees contend that the Dunhams “waived their claim that the appellees’ alleged

negligence involve[d] direct corporate liability [because] it was not raised below.” In any

event, they assert that the complaint did not allege corporate actions as the basis for their

claims, but rather, the claim was “grounded on a theory of vicarious liability based on the

alleged breach in the nursing standards of care.” Appellees argue that dismissal was

appropriate because neither the complaint nor the certificate alleged acts of negligence on

the part of appellees “separate and apart from the alleged breaches of the standard of care

of Appellees’ ‘agents, servants and/or employees.’”

We address first appellees’ claim that Mr. and Mrs. Dunham waived their claim that

they alleged direct corporate liability because it was not raised below. The Dunhams

19

dispute this contention, alleging that they did argue below that the hospitals could face

independent liability where no individual licensed professional faced liability.

Maryland Rule 8-131(a) provides that, “[o]rdinarily, the appellate court will not

decide any . . . issue unless it plainly appears by the record to have been raised in or decided

by the trial court.” “The application of the rule limiting the scope of appellate review to

those issues and arguments raised in the court below ‘is a matter of basic fairness to the

trial court and to opposing counsel, as well as being fundamental to the proper

administration of justice.’” In re Kaleb K., 390 Md. 502, 513 (2006) (quoting Medley v.

State, 52 Md. App. 225, 231 (1982)). Accord Alexis v. State, 209 Md. App. 630, 667, aff’d,

437 Md. 457 (2014). Therefore, “if a party fails to raise a particular issue in the trial court,

. . . the general rule is that he or she waives the issue on appeal.” Nalls v. State, 437 Md.

674, 690 (2014).

Here, as appellees note, the premise of appellees’ liability was grounded in the

theory of vicarious liability. For example, in the certificate, Dr. Gasparis attested that

appellees, “through their agents, servants, and/or employees, breached the applicable

standard of care.” (Emphasis added). In their complaint, Mr. and Mrs. Dunham alleged

that the “actions and inactions of the [appellees], through their agents, servants, and

employees, breached the applicable standards of nursing care,” and, as a result, appellees,

“acting through their agents, servants and employees,” harmed Mr. Dunham. (Emphasis

added).

20

At the hearing on the motion to dismiss Dunham I, counsel for the Dunhams did not

argue that the certificate was proper because the claim was one of direct negligence against

appellees. To be sure, counsel for the Dunhams stated at the hearing that an institution

could have faulty policies. In response to a question by the court regarding whether the

claim would have to be the failure of a physician, a health care provider, however, counsel

did not disagree. Instead, he stated that the people usually responsible for the injuries that

Mr. Dunham suffered are nurses. And in the Dunhams’ opposition to the motion to strike

the certificate, they argued that appellees’ reliance on Carroll, 400 Md. 167, to assert that

specific individuals must be identified in the certificate and report, was misplaced because

that case “did not involve any institutional defendants and did not involve any claims of

vicarious liability.” (Emphasis added). The Dunhams did not argue below that their

certificate was adequate because they were asserting claims of direct negligence against

appellees, and therefore, this claim is not preserved for this Court’s review.

Moreover, although the issue of direct corporate liability of a hospital is an

interesting and novel one, the complaint, certificate, and report here all alleged that

appellees breached their standard of care through the actions or inactions of their agents,

servants, and employees.10 See Crosetto, slip op. at 24 (allegations against the organization

10

Mr. and Mrs. Dunham assert in their brief on appeal that the certificate and report

“contained numerous allegations of direct negligence against Appellees.” In support, they

point to Dr. Gasparis’ “specific criticisms,” including: “[The Defendants] breached the

standard of care in failing to recognize Mr. Dunham’s high risk for developing pressure

ulcers.” The report, however, in the portion that the Dunhams refer to as “[The

Defendants],” actually states: “Health Care Providers, University of Maryland Medical

21

were based on respondeat superior and did not assert that the entity itself committed

medical malpractice). Accordingly, we agree with appellees that this issue is not properly

before this Court for review.

B.

Vicarious Liability

Mr. and Mrs. Dunham next contend that “Maryland law does not require naming

specific health care providers in a [certificate] for agency purposes when institutional

defendants are properly named.” They assert that “no subsection of [CJP] § 3-2A-04(b)

addresses any requirement concerning the naming of individual, licensed health care

providers in a [certificate] or [r]eport.”

The Maryland appellate cases, however, have made clear that a certificate must

“mention explicitly the name of the licensed professional who allegedly breached the

standard of care.” Carroll, 400 Md. at 196. Accord Crosetto, slip op. at 17 (certificate

must identify with specificity the licensed professional(s) who breached the standard of

care). See also Barber v. Catholic Health Initiatives, Inc. 180 Md. App. 409, 423-24, 434

(certificate using the term “Health Care Providers” was sufficient where each defendant

was listed individually on the claim form and statement of claim, which then defined them

collectively as “Health Care Providers,” and therefore, “[w]hen read with the Statement of

Center, LLC, Maryland General Hospital, Inc, d/b/a University of Maryland Medical

Center Midtown Campus, and the University of Maryland Medical System Corporation,

through their agents, servants and/or employees.” (Emphasis added).

22

Claim, the [c]ertificate unequivocally identified” the health care providers, physicians and

entities that violated the standard of care), cert. denied, 406 Md. 192 (2008).

Here, the certificate filed with the statement of claim in Dunham I stated that

appellees, acting through their agents, servants, or employees, breached the standard of

care, but it did not specifically identify any individuals who breached the standard of care.

Without more detail regarding the licensed professionals who allegedly breached the

standard of care, thereby making appellees vicariously liable, the certificate did not contain

the “information necessary for evaluating whether the defendant breached the standard of

care.” Kearney, 416 Md. at 651.

Mr. and Mrs. Dunham contend that “a certificate of qualified expert and report are

not a substitute for discovery,” and therefore, “only minimal detail is required.” The Court

of Appeals, however, has explained that, “[e]ven if Petitioners could have conducted

discovery in lieu of Respondent’s filing of an attesting expert report, that fact does not

modify the clear legislative policy of weeding out non-meritorious claims and reducing the

cost of litigation.” Walzer, 395 Md. at 583. Thus, a complete and valid certificate and

report must be filed to maintain a medical malpractice action in accordance with “the

meaning and intention of the Legislature.” Id. at 584. It is, as the Court of Appeals has

explained, an “indispensable step.” Carroll, 400 Md. at 181. And to satisfy this step, a

plaintiff must “identify, with some specificity, the person whose actions should be

evaluated.” Id. at 196. Accord Crosetto, slip op. at 21. The circuit court properly

determined that Mr. and Mrs. Dunham failed to do so with their initial certificate.

23

III.

90-Day Extension

Mr. and Mrs. Dunham contend that, even if the certificate in Dunham I was

deficient, the circuit court erred by failing to grant them a 90-day mandatory extension to

file a proper certificate in lieu of dismissing the case. They assert that, by dismissing the

case, the court violated CJP § 3-2A-04(b)(1)(ii), which they refer to as “the savings

statute.” Mr. and Mrs. Dunham contend that, pursuant to the savings statute, the court was

“mandated to give [them] an extension of no more than 90 days to file an appropriate

certificate,” asserting that the extension set forth therein “is awarded to plaintiffs as a matter

of right and is not discretionary.”

Appellees disagree. They contend that “an extension to file a valid [certificate] in

the trial court was not an option in this instance because [Mr. and Mrs. Dunham] did in fact

file a [certificate] within 90 days of filing their Statement of Claim” and the savings statute

“applies only when no [certificate] has been filed.”

CJP § 3-2A-04(b)(1)(ii) states, in pertinent part:

(ii) In lieu of dismissing the claim or action, the panel chairman

or the court shall grant an extension of no more than 90 days for filing

the certificate required by this paragraph, if:

1. The limitations period applicable to the claim or action

has expired; and

24

2. The failure to file the certificate was neither willful nor

the result of gross negligence.

(Emphasis added).

Here, after the court concluded that Mr. and Mrs. Dunham had filed a deficient

certificate, it considered their request for an extension under CJP § 3-2A-04(b)(1)(ii) of

“no more than 90 days” to cure the deficiency. Although the court acknowledged that this

Court had stated in Puppolo, 215 Md. App. at 532 (quoting D’Angelo, 157 Md. App. at

645), that “‘the failure to file a proper certificate is tantamount to not having filed a

certificate at all,’” it concluded that, “to apply CJP [§ 3-2A-04(b)(1)(ii)] under the

circumstances would not be consistent with what this [c]ourt believes was the intention of

the legislature” because it would give the plaintiff the opportunity to file a bare certificate

and then “ask for a do over.” Accordingly, the court granted the motion to dismiss without

giving the Dunhams an extension to file an adequate certificate.

To determine whether appellants are correct that, pursuant to the statute, the court

was “mandated to give plaintiffs an extension of no more than 90 days to file an appropriate

certificate,” we must apply well-settled rules of statutory construction:

The cardinal rule of statutory interpretation is to ascertain and

effectuate the real and actual intent of the Legislature. A court’s primary goal

in interpreting statutory language is to discern the legislative purpose, the

ends to be accomplished, or the evils to be remedied by the statutory

provision under scrutiny.

To ascertain the intent of the General Assembly, we begin with the

normal, plain meaning of the statute. If the language of the statute is

unambiguous and clearly consistent with the statute’s apparent purpose, our

inquiry as to the legislative intent ends ordinarily and we apply the statute as

written without resort to other rules of construction. We neither add nor

25

delete language so as to reflect an intent not evidenced in the plain and

unambiguous language of the statute, and we do not construe a statute with

“forced or subtle interpretations” that limit or extend its application.

State v. Bey, 452 Md. 255, 265 (2017) (quoting State v. Johnson, 415 Md. 413, 421–22

(2010)). In interpreting a statute, we give it a “reasonable interpretation, not one that is

absurd, illogical or incompatible with common sense.” Id. at 266.

The statute, as written, expressly states that, “[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

required,” if the requisite conditions are shown, i.e., the limitations period has expired and

the failure to file the certificate was neither willful nor the result of gross negligence. CJP

§ 3-2A-04(b)(1)(ii).11 Initially, we note that, prior to 2004, CJP § 3-2A-04(b)(1)(ii) limited

the power to grant an extension to the panel chairman of the HCADRO. In 2004, however,

the General Assembly amended the statute to authorize “the court” to approve the 90-day

extension. Barber v. Catholic Health Initiatives, Inc., 174 Md. App. 314, 334, n. 12

(2007).12

11

Here, there is no dispute that, at the time of the request, the limitations period had

expired. According to the complaint, Mr. Dunham was released from the hospital on

February 6, 2014, with open wounds, and the request for an extension to file a new

certificate was made on February 17, 2017, more than three years later. See CJP § 5-109(a)

(a medical malpractice claim must be filed within the earlier of “(1) [f]ive years of the time

the injury was committed; or (2) [t]hree years of the date the injury was discovered.”).

12

Barber v. Catholic Health Initiatives, Inc., 174 Md. App. 314 (2007) [“Barber

I”], was vacated by the Court of Appeals and remanded to this Court to be reconsidered in

light of the decision in Carroll v. Konits, 400 Md. 167 (2007). This Court did so and found

that Carroll was distinguishable and did not require a different result. Barber v. Catholic

Health Initiatives, Inc., 180 Md. App. 409, 426 (2008) [“Barber II”].

26

Moreover, the statute provides that the court “shall” grant an extension if the

requisite conditions are shown. We agree with the Dunhams that the word “shall” denotes

mandatory action. The term is defined as “[h]as a duty to; more broadly, is required to.”

Black’s Law Dictionary 1407 (8th ed. 2004). As the Court of Appeals has explained:

The term “shall” is [] unambiguous. It remains a well-settled principle

of this Court that “[w]hen a legislative body commands that something be

done, using words such as ‘shall’ or ‘must,’ rather than ‘may’ or ‘should,’

we must assume, absent some evidence to the contrary, that it was serious

and that it meant for the thing to be done in the manner it directed.”

Walzer, 395 Md. at 580 (quoting Thanos v. State, 332 Md. 511, 522 (1993)). Indeed, the

Court of Appeals in McCready, 330 Md. at 510, interpreted the use of the language “shall

grant an extension” as indicating an intent that, not only is it mandatory to grant an

extension, but such an extension “be granted automatically in lieu of dismissal,” subject to

a defendant’s motion to dismiss on the grounds that the claimant’s failure to file the

expert’s certificate within the first 90 days was grossly negligent or willful.”

In McCready, 330 Md. at 508, the Court of Appeals discussed in detail how the 90-

day extension set forth in CJP § 3-2A-04(b)(1)(ii) operates. In that case, the claimants filed

a claim with the HCADRO five days before the statute of limitations was to run. Id. at

501. Although the claim was timely filed, they failed to timely file a certificate within the

90-day period. Id. at 502. The defendants filed motions to dismiss based on the failure to

file a certificate, and 111 days after filing their claim, the claimants requested a 90-day

extension under CJP § 3-2A-04(b)(1)(ii). Id. The HCADRO “did not take any immediate

action on the request,” but it scheduled a hearing. Id. at 503. Following a hearing (217

27

days after filing the claim), the HCADRO dismissed the claim for failure to file a certificate

or request an extension within the initial 90-day period following the filing of their claim.

Id.

The claimants, who still had not filed the required certificate, instituted a court

action to nullify the HCADRO’s order, asserting that CJP “§ 3-2A-04(b)(1)(ii) created a

mandatory extension for filing an expert’s certificate and that the Panel Chair therefore

erred in failing to grant their request for such an extension.” Id. The Court of Appeals

agreed that the extension was mandatory and, as indicated, it determined that the extension

was automatic. Id. at 510. It explained that the limitation of the extension to “no more

than 90 days” indicated that

the General Assembly intended to create a limited 90–day extension that

commences immediately and automatically upon the expiration of the initial

90–day period. The reason for the time limit is obvious—for subparagraph

(b)(1)(ii) claimants, the statute of limitations has run and the claimants have

already had a considerable period of time to prepare their claims. In contrast

to the “good cause” extensions under §§ 3–2A–04(b)(5) and 3–2A–05(j),

subparagraph (b)(1)(ii) gives claimants in a limited set of circumstances up

to 180 days to file an expert’s certificate without the need to prove “good

cause.”

Id. at 511. The Court noted that, although the claimants had filed a request for an extension,

“a bare request for an extension does not toll the second 90-day time period under § 3-2A-

04(b)(1)(ii).” Id. at 513. The Court held that, “[w]here a claimant seeks a § 3–2A–

04(b)(1)(ii) extension, it must file the expert’s certificate within the second 90–day period,

i.e., within 180 days from the initial filing of the claim.” Id. Because the claimants in that

28

case had not filed their certificate within the 180-day period provided in the statute, their

claim was correctly dismissed. Id. at 513.

Based on the language of CJP § 3-2A-04(b)(1)(ii), and the case law, we hold that,

where a plaintiff fails to file the certificate required by § 3-2A-04, and certain conditions

exist, the court is required to grant an extension to file the requisite certificate, “[i]n lieu

of dismissing” the action. The conditions that must exist for the mandatory extension are:

(1) the limitations period has expired; (2) there has been no assertion by the defense, and

finding by the court, that the failure to file the requisite certificate was grossly negligent or

willful; and (3) no more than 180 days have passed since the claim was filed.

Here, there is no dispute that the limitations period had expired, and there was no

allegation before the court in this case that the failure to file the requisite certificate was

grossly negligent or willful. And, as discussed infra, the request for an extension was made

within 180 days of the filing of the claim.

Appellees argue, however, that this mandatory extension “applies only when no

[certificate] has been filed.” Because Mr. and Mrs. Dunham had filed a certificate, albeit

an insufficient one, appellees assert that an extension was not required. We disagree.

The Maryland appellate courts have stated repeatedly that the “‘failure to file a

proper certificate is tantamount to not having filed a certificate at all.’” Walzer, 395 Md.

at 582 (quoting D’Angelo, 157 Md. App. at 645). In Breslin, 421 Md. at 292, the Court of

Appeals addressed the argument whether, in the circumstance where the plaintiff, similar

to the Dunhams, filed a timely, but deficient, certificate, summary judgment was the proper

29

remedy. Dr. Breslin argued, similar to the argument in this case, that dismissal without

prejudice applied only in circumstances where there was a failure to file a certificate, i.e.,

the plaintiff “does not file a certificate at all.” Id. The Court of Appeals disagreed, stating:

We imagine several ways in which a plaintiff could “fail to file a

certificate of qualified expert,” including but not limited to: (1) not filing a

certificate at all; (2) filing a certificate of an unqualified expert who does not

have the requisite training; (3) filing a certificate of an otherwise qualified

expert who devotes more than twenty percent of his professional activities to

testimony in personal injury cases; or (4) filing a certificate of a qualified

expert that does not include the required report. These and other ways in

which a claimant or plaintiff can “fail to file” are not distinguished in the

statute.

Id. at 292-93. The Court agreed with our statement in D’Angelo, 157 Md. App. at 645, that

“failure to file a proper certificate is tantamount to not having filed a certificate at all.”

Breslin, 421 Md. at 292-93. Accordingly, the Court held that, pursuant to the plain

language of the Act, “dismissal without prejudice of the underlying claim for the filing of

a non-compliant Certificate, regardless of the particular qualification or requirement the

Certificate or its attestor fails to meet,” is required. Id. at 270.13

Applying this analysis to the present case, the Dunhams’ filing of a non-compliant

certificate amounted to a failure to file a certificate pursuant to CJP § 3-2A-04(b)(1)(i).

Pursuant to § 3-2A-04(b)(1)(ii), the circuit court was required to grant them an extension

of no more than 90 days to file the certificate required, in lieu of dismissing the action. The

court erred when it dismissed Dunham I without permitting Mr. and Mrs. Dunham an

extension to file a proper certificate. Accordingly, we shall vacate the order of the circuit

13

The mandatory extension provision was not at issue in that case.

30

court with instructions to grant the Dunhams an extension to file a certificate that satisfies

the requirements of the Act.

A question remains, however, regarding the allotted time for an extension under CJP

§ 3-2A-04(b)(1)(ii). As indicated, the Court in McCready, 330 Md. at 512, held that the

90-day extension available under CJP § 3-2A-04(b)(1)(ii) permits an extension for filing a

proper certificate only up to 180 days from the date the claimant filed the claim with the

HCADRO.

Here, a 90-day extension to file a proper certificate was automatically available to

the Dunhams. Based on the date they filed their claim with the HCADRO, October 14,

2016, the 180-day deadline to do so was April 12, 2017. Prior to that time, on March 8,

2017, the circuit court erroneously dismissed Dunham I, terminating the case and

preventing the Dunhams from properly filing a revised certificate in this case.14

Accordingly, on remand, upon the circuit court’s order granting an extension, the Dunhams

14

Although the Dunhams did file a new certificate using the same claim number as

the case that was dismissed, they do not cite any authority permitting them to do so. The

case law indicates that, once a case is dismissed for failure to comply with the filing

process, the claimant has the “opportunity to begin the process a new.” Walzer v. Osborne,

395 Md. 563, 584 (2006). “Anew” means “in a new or different form.” Merriam-

Webster’s Collegiate Dictionary 47 (11th ed. 2003). See also Puppolo, 215 Md. App. at

524 (after the initial complaint against the institutional defendant was dismissed, the

plaintiff refiled her claim in the HCADRO, waived arbitration, transferring the claim to

court, where it was consolidated with the initial complaint still pending against the

individual physician-defendant). In any event, if the Dunhams had been able, as they

allege, to file the new certificate in the initial action, the filing on April 24, 2017, 192 days

after they filed their initial claim, was outside the 180-day deadline, and therefore,

untimely.

31

will have 35 days to file a proper certificate, the number of days that remained in the 180-

day period when the court dismissed the case.15

IV.

Dunham II

As indicated, after Dunham I was dismissed, in addition to filing an appeal

contesting the propriety of its dismissal, the Dunhams also reopened the statement of claim

of Dunham I in the HCADRO to seek an extension of time to file a proper certificate. The

HCADRO granted them a 60-day extension to file a proper certificate, and after the second

certificate was filed, the claim was transferred to circuit court, which dismissed the action.

The Dunhams allege in this consolidated appeal that the court erred in dismissing Dunham

II.

Because the underlying claims in Dunham I and Dunham II are the same, and we

have granted the Dunhams relief in Dunham I, their claims with respect to Dunham II are

moot. See R.J. Reynolds Tobacco Co. v. Stidham, 448 Md. 497, 515 (2016) (“An appeal

is moot where there is no longer an existing controversy when the case comes before the

Court or when there is no longer an effective remedy the Court could grant.”). See also

Clark v. O’Malley, 434 Md. 171, 197 (2013) (where the Court affirmed the grant of

summary judgment, and therefore, there would be no trial or records to be introduced into

15

We express no opinion whether the revised certificate filed with the HCADRO

on April 24, 2017, complies with the requirements of the Act.

32

evidence, the issue whether the motion to intervene to have certain records sealed was

properly denied as moot). Accordingly, we will dismiss the appeal in Dunham II.

JUDGMENT OF THE CIRCUIT COURT

FOR BALTIMORE CITY AS TO DUNHAM

I VACATED AND REMANDED WITH

INSTRUCTIONS FOR THE CIRCUIT

COURT TO GIVE APPELLANTS 35 DAYS

TO FILE A PROPER CERTIFICATE.

APPEAL IN DUNHAM II DISMISSED AS

MOOT. COSTS TO BE PAID 50% BY

APPELLANTS AND 50% BY APPELLEES.

33