Carroll v. Konits

Concurring Opinion by

HARRELL, J.

I reluctantly concur in the result reached by the Majority opinion. Although I agree generally with the Dissent’s analysis of the sufficiency of Dr. Simmons-Clemmons’ 27 October 2005 letter report, I do not think it is the appropriate report to analyze in this case. Both the Majority opinion and the Dissent glide smoothly past the fact that Carroll failed to *202 present any cause, let alone good cause, to the Health Claims Alternative Dispute Resolution Office (HCADRO) for the needed extension of time to supplement her 3 August 2005 report. The August 3 report asserts that Dr. SimmonsClemmons completed a review of the medical records in formulating her report. Her Answer To Motion To Dismiss before the HCADRO, in which she requested, “in the interest of justice,” an extension of time to file ultimately what was to become the October 27 version, offered absolutely nothing in the way of good cause for an extension. She did not claim any factual or legal basis for not being in a position for her certifying doctor’s August 3 report to have included everything required to be included there. Accordingly, the grant of the “good cause” extension by the HCADRO, on this record, was clearly erroneous as a matter of law and arbitrary and capricious as lacking any factual basis for good cause.

Confining consideration to the August 3 version (the only report properly before the Court), I am unable to join the Dissent, which places great weight in its analysis on the substantive additions found only in the October 27 version. In the important concluding lines of the August 3 report, the doctor states:

Thirdly, it does appear that Mrs. Mary Carroll suffered complications arising from having a catheter in place for too long, i.e. A DVT and chronic venous stasis of the right arm with chronic lymph edema.

(emphasis added).

In the concluding lines of the October 27 report, Dr. Simmons-Clemmons revised somewhat and supplemented this language:

Thirdly, it does appear that Mrs. Mary Carroll suffered complications arising from having a catheter in place for longer than what is standard treatment, i.e. a DVT and chronic venous stasis of the right arm with chronic lymph edema. It is my professional opinion that Mrs. Carroll sustained injury secondary to below standard of care received in regards to removal of the Hickman catheter *203 after chemotherapy. Please he advised that I do not devote more than 20 percent of my annual time to activities that directly involve personal injury claims.

(emphasis added).

Without the modified and added language in the October 27 report, the Dissent’s reasoning does not hold up:

In examining Dr. Simmons-Clemmons’s amended Certificate, it is clear that she satisfied the two stated requirements [departure from standard of care and proximate cause]. The pertinent language of Dr. SimmonsClemmons’s second certificate, in which she discusses her professional medical opinion in reference to Mrs. Carroll’s medical care, is as follows:

[I]t does appear that Mrs. Mary Carroll suffered complications arising from having the catheter in place for longer than what is standard treatment^] (i.e. a DVT and chronic venous stasis of the right arm with chronic lymph edema.[) ]

It is my professional opinion that Mrs. Carroll suffered injury secondary to below standard of care received in regards to removal of the Hickman catheter after chemotherapy.

Dr. Simmons explained in the Certificate that the catheter was in place for “longer than what is standard treatment” and that the treatment that Mrs. Carroll received was “below standard of care.” She therefore satisfied the first condition.

As to the second requirement, Dr. Simmons-Clemmons stated that “there was no clear communication to the patient that indicated she should seek medical attention in the removal of the catheter from her chest after chemotherapy was completed,” and further that Mrs. Carroll “suffered injury secondary to below standard of care received in regards to removal of the Hickman catheter after chemotherapy.”

Dissent, op. at 204-05, 929 A.2d at 41-42.

Accordingly, I am compelled to join the judgment reached by the Majority in this case.

*204 Dissenting Opinion by GREENE, J., which BELL, C.J., Joins.

I agree with the majority that Mrs. Carroll preserved for appellate review her arguments concerning the propriety of Dr. Simmons-Clemmons’s Certificate and also that the Director had the authority and discretion to grant Mrs. Carroll’s extension. I also agree that a Certificate must identify the health care provider against whom the claim is brought, and the certifying expert must attest to facts that support the allegation that the health care provider’s conduct breached the applicable standard of care and that such a departure from the standard of care proximately caused the plaintiffs injuries. In this case, however, I believe that Mrs. Carroll submitted a Certificate that satisfied those minimum requirements. Therefore, the Circuit Court was incorrect to grant the appellees’ motion to dismiss the case and, accordingly, I would reverse the judgment of the Circuit Court for Baltimore City.

As stated supra, § 8-2A-04(b)(l)(i) of the Courts & Judicial Proceedings Article states that

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....

(Emphasis added.) The majority interprets this language as requiring that the Certificate contain the qualified expert’s affirmation that the defendant-physician departed from the standards of care and that such a departure was the proximate cause of the plaintiffs alleged injury. I agree with that interpretation.

In examining Dr. Simmons-Clemmons’s amended Certificate, it is clear that she satisfied the two stated requirements. The pertinent language of Dr. Simmons-Clemmons’s second certificate, in which she discusses her professional medical opinion in reference to Mrs. Carroll’s medical care, is as follows:

*205 [I]t does appear that Mrs. Mary Carroll suffered complications arising from having the catheter in place for longer than what is standard treatment[,] (i.e. a DVT and chronic venous stasis of the right arm with chronic lymph edema.[) ]

It is my professional opinion that Mrs. Carroll suffered injury secondary to below standard of care received in regards to removal of the Hickman catheter after chemotherapy.

Dr. Simmons-Clemmons explained in the Certificate that the catheter was in place for “longer than what is standard treatment” and that the treatment that Mrs. Carroll received was “below standard of care.” She therefore satisfied the first condition.

As to the second requirement, Dr. Simmons-Clemmons stated that “there was no clear communication to the patient that indicated she should seek medical attention in the removal of the catheter from her chest after chemotherapy was completed,” and further that Mrs. Carroll “suffered injury secondary to below standard of care received in regards to removal of the Hickman catheter after chemotherapy.” While Dr. Simmons-Clemmons never used the term “proximate cause” to explain the cause of Mrs. Carroll’s injuries, she stated specific facts which causally linked the health care providers’ breach of the standard of care to Mrs. Carroll’s injuries. The substance of what Dr. Simmons-Clemmons said is obvious and is evidence of the cause of Mrs. Carroll’s injuries.

It is well settled that several negligent acts may work together to cause an injury, and that each person whose negligent act is a cause of an injury may be legally responsible. See Atlantic Mut. Ins. Co. v. Kenney, 323 Md. 116, 127 , 591 A.2d 507, 512 (1991) (“Negligence which constitutes a proximate cause of an injury need not necessarily be the sole cause.... In order to be a proximate cause, the negligence must be 1) a cause in fact, and 2) a legally cognizable cause.”); see also Peterson v. Underwood, 258 Md. 9, 17 , 264 A.2d 851, *206 855 (1970). Moreover, proximate cause is a legal term and not a medical term. Dr. Simmons-Clemmons’s certification of facts, with regard to causation, was consistent with the statutory requirements of § 3-2A-04(b) that the person making the certification must be a health care provider and attest to the facts that support the allegation that a health care provider’s conduct breached the standard of care and the departure from the standard of care proximately caused the alleged injury. 1

As stated supra, the purpose of the Certificate is to reduce the number of non-meritorious claims being submitted to the Health Care Alternative Dispute Resolution Office. Dr. Simmons-Clemmons, through her attestation, demonstrated that Drs. Konits and Imoke failed to communicate with each other and that such a failure caused Mrs. Carroll’s catheter to remain in place for more than two years longer than what is standard medical procedure. Dr. Simmons-Clemmons also makes clear that because the catheter was left in place for so long, Mrs. Carroll suffered injuries. I would therefore hold that Mrs. Carroll also satisfied the second stated requirement.

The majority also interprets the language of § 3-2A-04(b) as requiring that the Certificate identify the specific individual or individuals who breached the standard of care. I agree. I disagree with the majority, however, that Mrs. Carroll’s Certificate is incomplete because it fails to comply -with this requirement. I acknowledge that Dr. Simmons-Clemmons filed a statement that included the names of five different physicians, only two of whom are the named health care providers/appellees in this case. The Certificate, however, *207 specifically mentioned Dr. Imoke and Dr. Konits and made clear that the physicians failed to communicate to Mrs. Carroll that her catheter needed to be removed after she completed chemotherapy. Mrs. Carroll made clear that Dr. Imoke was the health care provider who placed the catheter inside her chest and that Dr. Konits’s failure to contact Dr. Imoke and make him aware that the catheter could be taken out, resulted in it being left inside her chest for two and one-half years. 2 I would therefore conclude that the Certificate satisfied the requirements in this regard and the Circuit Court was therefore incorrect to dismiss the case on the grounds that Mrs. Carroll failed to file a proper Certificate. The purpose of the statute is to weed out non-meritorious claims, not to dismiss meritorious claims for frivolous reasons.

The majority does not address the other contentions made by Drs. Konits and Imoke. I believe it is important for the Court to address these contentions. Drs. Konits and Imoke contend that the Certificate must state that Dr. SimmonsClemmons spends no more than 20 percent of her professional time on personal injury-related litigation, that she is board certified in the same fields as Drs. Konits and Imoke and that she has a similar medical background to Drs. Konits and *208 Imoke. I would reject these contentions. The 20 percent declaration is not at issue in this case because Dr. SimmonsClemmons explicitly stated in her amended Certificate that she spends no more than 20 percent of her time on personal injury claims. Notwithstanding, I do not read the Health Care Malpractice Claims Statute to require that the Certificate include any of this information. Section 3-2A-04(b)(4) identifies a precise limitation on the qualifications of an attesting health care provider:

A health care provider who attests in a certificate of a qualified expert or who testifies in relation to a proceeding before an arbitration panel or a court concerning compliance with or departure from standards of care may not devote annually more than 20 percent of the expert’s professional activities to activities that directly involve testimony in personal injury claims.

The other applicable provision as to Drs. Konits and Imoke’s contentions is § 3-2A-02(c), entitled “Establishing liability of health care provider; qualifications of persons testifying,” part (2)(ii)(l.), which states that any health care provider who attests in a Certificate to a defendant-health care provider’s departure from the standards of care:

A. Shall have had clinical experience, provided consultation relating to clinical practice, or taught medicine in the defendant’s specialty or a related field of health care, or in the field of health care in which the defendant provided care or treatment to the plaintiff, within 5 years of the date of the alleged act or omission giving rise to the cause of action; and

B. Except as provided in item 2 of this subparagraph, if the defendant is board certified in a specialty, shall be board certified in the same or a related specialty as the defendant.

The above-quoted language from § 3-2A-04(b)(4) and § 3-2A-02(c)(2)(ii)(l.) demonstrates the General Assembly’s intent to place limitations on the qualifications of experts who attest to a defendant’s breach of the standard of care and that such a *209 breach proximately caused the plaintiffs injuries. By requiring that experts have similar training and are board certified in the same field(s) as the defendant-health care providers about whose behavior the expert is attesting, clearly, the Legislature sought to ensure that the attesting experts are qualified to render an opinion about the defendant-health care providers’ alleged departure from the standards of care.

The General Assembly stated that attesting health care providers “may not devote annually more than 20 percent,” “shall have had clinical experience,” and “shall be board certified in the same or a related specialty” not that they must attest to the fact that they do not devote annually more than 20 percent, have the same clinical experience and are board certified in the same field as the defendant. I would therefore decline to hold that the General Assembly intended for such statements to be included in the Certificate and that without such statements, the claim must be dismissed on the ground that the Certificate is deficient.

We explained in Debbas v. Nelson, 389 Md. 364, 383 , 885 A.2d 802, 814 (2005) that

[t]he strictly limited time period provided for securing a valid Certificate ... demonstrates the General Assembly’s intention that the findings and opinions contained therein would be preliminary. To interpret the statute otherwise might effectively preclude many malpractice suits from ever proceeding on the merits.

Parties can instead obtain this information through discovery. As stated by the Maryland Trial Lawyers Association, which filed an Amicus Curiae brief, “a simple interrogatory would discover the information that [Dr.] Konits asks to be amended into § 3-2A-04(b), and ..., under § 3-2A-04(b)(3)(ii), such discovery always was contemplated by the Legislature.” See Md.Code (1974, 2002 RepLVol., 2006 Cum. Supp.), § 3—2A.—04(b)(3)(ii) of the Courts & Judicial Proceedings Article (stating that “[discovery is available as to the basis of the [Certificate”). As we stated in Koons Ford v. Lobach, 398 Md. 38, 62-63 , 919 A.2d 722, 737 (2007):

*210 If [the Legislature] intended otherwise, then it certainly had, and still has, the ability to say so. As we have previously explained, however, “[i]t is not the task of the Judiciary to rewrite the Statute____The court’s charge in interpreting a statute is to determine the intent of the Legislature, not to insert language to change the meaning of a statute.” Walzer, 395 Md. at 584-85, 911 A.2d at 439-40 (citations omitted).

I would conclude that the information regarding the attesting expert’s professional attributes is not required to be contained in the Certificate. That is, a claimant can get into court without it; however, I stress that it would be the better practice to include such information in the Certificate so that claimants can avoid unnecessary challenges to the qualifications of the person who submitted the document. Moreover, if the attesting health care provider fails to meet these statutory professional requirements, it would appear that the claimant is not arbitrating in good faith, 3 as is required. Karl v. Davis, 100 Md.App. 42, 50 , 639 A.2d 214, 218 (1994). The issue before us in this case, however, is what must be included within the four corners of the Certificate for it to be valid, not who is qualified to attest to a Certificate.

Furthermore, Drs. Konits and Imoke argue that Mrs. Carroll’s amended Certificate is incomplete because Dr. Simmons-Clemmons did not state that her opinions are based upon a reasonable degree of medical probability. Essentially, the doctors, by this contention, raise issues of admissibility and reliability with regard to the Certificate. Nothing in the language of the Health Care Malpractice Claims Statute, however, requires that such an assertion be made in the *211 Certificate. There exists a test for admitting into evidence an expert medical opinion. See Maryland Rule 5-702 (addressing the testimony by experts at trial); Trimble v. State, 300 Md. 387, 404 , 478 A.2d 1143, 1151 (1984) (stating that the party seeking to elicit an opinion must establish that the witness is qualified to express it and that the trial judge must decide that issue as a preliminary matter of law). There also exists a requirement that the expert’s opinion be held to a “reasonable degree of medical probability” to ensure that the expert’s opinion is more than speculation or conjecture. See Karl, 100 Md.App. at 51-52 , 639 A.2d at 219 (stating that “[wjhile [an] expert opinion must be based upon more than mere speculation, it need not be expressed with absolute certainty----We have required expert opinions to be established within a reasonable degree of probability.”) See also Fink v. Steele, 166 Md. 354, 363 , 171 A. 49, 53 (1934); Charlton Bros. Transp. Co. v. Garrettson, 188 Md. 85, 94 , 51 A.2d 642, 646 (1947).

Drs. Konits and Imoke also construe this Court’s holding in Walzer v. Osborne, 395 Md. 563 , 911 A.2d 427 (2006), to mean that, in all circumstances, two separate documents must be filed—a Certificate and an attesting expert report—and that, because Dr. Simmons-Clemmons filed only one document, it is deficient. The Court said in Walzer that the expert’s report must be attached to the Certificate. We based that conclusion on our reading of the statutory language of § 3-2A-04(b)(3)(i) that “[t]he attorney representing each party, or the party proceeding pro se, shall file the appropriate certificate with a report of the attesting expert attached” (emphasis added).

In this case, Mrs. Carroll failed to attach a separate document, an attesting expert report, to the Certificate that she submitted to the Health Care Alternative Dispute Resolution Office. Notwithstanding, as clarification of our decision in Walzer , and in response to the appellees’ contention in this case, while it is clear that the Legislature intended for the attesting expert report to be attached to the Certificate, consistent with that statutory mandate, I see no reason why both documents may not comprise separate parts of a single document and thereby become incorporated into one docu *212 ment, just as a report attached to the Certificate, at the time of the initial filing, would be a complete certification. 4 The Legislature’s intent in enacting the Health Care Malpractice Claims Statute was to weed out non-meritorious claims by requiring claimants to submit certain information to the Health Care Alternative Dispute Resolution Office. There is no reason why an attesting expert report, or Certificate, if filed with the intent to incorporate a previously filed report or Certificate, or a Certificate containing a section that includes the attesting expert’s report, is not a complete certification of merit, just as a report attached to the Certificate would be a complete certification. The essence of the statutory requirement is that the Certificate is not complete unless there is a timely certification and report filed in the Health Claims case.

As the majority points out, we explained in Walzer, 395 Md. at 583 , 911 A.2d at 438-39 , that

the attesting expert report must explain how or why the physician failed or did not fail to meet the standard of care and include some details supporting the certificate of qualified expert____ Accordingly, the expert report should contain at least some additional information and should supplement the Certificate. Requiring an attesting expert to provide details, explaining how or why the defendant doctor allegedly departed from the standards of care, will help weed out non-meritorious claims and assist the plaintiff or defendant in evaluating the merit of the health claim____

In Walzer, 395 Md. at 568 , 911 A.2d at 430 , the attesting physician stated simply that:

Based on my training, expertise and review of the records, it is my opinion that there were deviations from the *213 standards of care and said deviations were the proximate result of Claimant Keith Osborne’s injury.

In that case, the attesting physician failed to include any information about how the physician deviated from the standard of care and how the said deviations from the standard of care caused Mr. Osborne’s injury; we therefore held that the Certificate was deficient because it lacked the information that would have constituted an attesting expert report. In this case, Dr. Simmons-Clemmons included enough information, in accordance with Walzer , within the four corners of her amended Certificate, thereby supplementing the certification consistent with the statutory requirements of § 3-2A-04(b) and § 3-2A-04(b)(3)(I). Although, for purposes of clarity, she could have titled the document, “Certificate of Qualified Expert and Report,” it amounts to our exalting form over substance to invalidate the Certificate because of that omission. In addition to stating that Drs. Konits and Imoke breached the applicable standard of care and that their breach caused Mrs. Carroll’s injuries, Dr. Simmons-Clemmons stated that the physicians failed to communicate effectively with Mrs. Carroll, regarding the timely removal of the catheter, and that the physicians failed to remove the catheter in a timely manner. She explained that Mrs. Carroll received treatment that fell below the standard of care “in regards to removal of the Hickman catheter after chemotherapy.” I would therefore conclude that Dr. Simmons-Clemmons successfully satisfied, within one document, the statutory requirements of the Certificate and attesting expert report, as explicated by this Court in Walzer .

I would also reject Drs. Konits and Imoke’s contention that the Certificate must be a “formal” document, and not in letter form, as was the case here. Nowhere in the Health Care Malpractice Claims Statute does it require that the attesting expert’s affirmations be contained in a “formal” document; the statute simply requires that the attesting health care provider specifically identify the health care provider about whom he or she is speaking, and that the certifying health care provider attest to the other health care provider’s departure from the *214 standard of care and that such a departure proximately caused the plaintiffs injuries.

Therefore, I respectfully dissent. Chief Judge Bell authorizes me to state that he joins the views expressed in this dissent.

. The majority recognizes that "proximate cause” is a legal term but states that "[w]e do not think, however, that its meaning, in this context, is so obtuse that a person would need to spend a great deal of time studying the definition to understand its meaning.” I agree with this statement. I disagree, however, that an affirmation from an attesting physician that a defendant-health care provider acted in such a way that makes clear that his or her conduct was the proximate cause of a plaintiff’s alleged injury, fails to satisfy the statutory requirements simply because it fails to include the magic words, proximate cause. I believe that the substance of the statement is more important than the inclusion of the specific legal terminology or conclusion.

. Recently, in Barber v. Catholic Health Initiatives, Inc., 174 Md.App. 314 , 921 A.2d 811 (2007), the intermediate appellate court examined previous health care claims cases of this State, including this Court’s decision in Walzer , and determined that the identity of the physicians who allegedly breached the standard of care must be discernable from the Certificate, and that a failure to do so will result in dismissal. In that case, the claimant named all twelve defendants in the original claim and defined them collectively as the "Health Care Providers.” The court determined that it was clear from the Certificate, about whom the physician was speaking, when the attesting physician explained that the "Health Care Providers” breached the standard of care. The court stated that "[t]he Certificate cannot be analyzed in a vacuum; it must be considered in the context of the Statement of Claim that it supported, which had already been filed with the HCAO.” The court noted, however, that "[t]o be sure, if appellants had re-named in the Certificate each person or entity listed in the Statement of Claim, this appeal would have been avoided.” Barber, 174 Md.App. at 351 , 921 A.2d at 833 . I agree that the inclusion of the specific names is the better practice, as Dr. Simmons-Clemmons indicated in her amended Certificate.

. Claimants must arbitrate in good faith and a failure to do so will result in dismissal of the claim. See Karl v. Davis, 100 Md.App. 42, 50-51 , 639 A.2d 214, 218 (1994) (stating that "[t]o allow less than a legitimate good faith attempt before the [Health Care Alternative Dispute Resolution Office] to satisfy the mandatory condition precedent would clearly thwart the legislative intent that all claims of medical negligence over the appropriate jurisdictional amount be fairly presented and tried before the [Health Care Alternative Dispute Resolution Office]”).

. In those cases where a Certificate is filed and subsequently there is filed in the case, a report to supplement the Certificate, the subsequent filing of a report may be made for the express purpose of completing the Certificate and thereby incorporating the report as an attachment to the previously filed Certificate. To avoid dismissal of the underlying claim, however, the subsequent filing must be timely.