An 81-year-old woman arrived at a hospital by ambulance. The paramedics indicated she had suffered a stroke the night before, resulting in right side weakness and general incoherence. The emergency department ordered a CT scan of her head, a chest x-ray, and blood work. A hospitalist examined the woman. A radiologist interpreted the CT scan and concluded that the scan did not show a new stroke or bleeding. The hospitalist admitted the woman, ordered an MRI to confirm there was no new stroke, and requested a neurologist to evaluate her condition. The hospitalist prescribed Lovenox based on her weight to bridge her anticoagulation and to manage the risk of stroke due to atrial fibrillation. The hospitalist's shift ended about twenty-five minutes after he examined the woman and he left the hospital. A neurologist saw the patient and agreed with the hospitalist’s plan. The Lovenox was then administered about an hour after the hospitalist left.
The woman remained in the hospital under the care of another physician who had treated her previously. About one week after she was admitted, the woman suffered a massive intracranial hemorrhage, which caused her to lapse into a coma. Her providers observed the hemorrhaging during an MRI scan the next day. They discontinued the Lovenox and transferred her to a trauma center, where she remained in a coma for six weeks. Over the next year, the woman suffered from numerous severe complications relating to her hemorrhage, coma, and extended hospitalization. About 28 months after her initial admission to the hospital, the woman died.
The personal representative of the woman’s estate filed a claim with the Maryland Health Care Alternative Dispute Resolution Office (“HCADRO”) against the hospital and the hospitalist who admitted the woman to the hospital. The claim alleged that the woman received an inappropriate dosage of Lovenox and that the hospitalist and hospital failed to diagnose her stroke and intercranial bleeding in a timely manner. The estate filed a Certificate of Merit and Report prepared by a neurologist. The parties waived out of arbitration. The estate filed a complaint in the Circuit Court for Montgomery County. The hospital filed a motion to dismiss for inadequate Certificate of Merit and Report. The court dismissed the complaint against the hospital without prejudice because the court determined that the estate's certificate did not specifically identify the licensed professionals at the hospital whom she alleged breached the standard of care. The court did not dismiss the complaint as to the hospitalist.
The estate filed a second complaint against the hospital in the Circuit Court for Montgomery County. The court consolidated this new complaint with the previous complaint against the hospitalist. The hospital filed a motion to dismiss, arguing that the statute of limitations had expired and that the estate did not comply with the Health Care Malpractice Claims Act (HCMCA) when she filed the second complaint in circuit court, instead of beginning again before the HCADRO. In addition to the motion to dismiss, the hospital filed a motion for summary judgment, arguing that the estate did not identify any expert witnesses in accordance with the court's scheduling order and therefore could not present a prima facie case of negligence against the hospital. The court granted the hospital's motion to dismiss and motion for summary judgment.
The hospitalist filed a motion to dismiss and a motion for summary judgment. The estate conceded that her neurologist expert could not opine on the standard of care for a hospitalist. The court granted the hospitalist’s motion for summary judgment. The estate filed a motion to alter or amend the court's judgment. The court denied the estate’s motion.
The Court of Special Appeals of Maryland affirmed. The court held that upon dismissal for failure to first submit the claim to an arbitration panel the estate was required to start again before the arbitration panel, and could not instead file a new civil action in the circuit court; expert testimony was required to establish the standard of care applicable to the hospitalist; the estate was not entitled to an opportunity to correct deficiencies in discovery; and the estate was not entitled to a grant of its motion to alter or amend.
The court held that a plaintiff whose certificate or report is found deficient by a court must return to HCADRO to file anew. The court clarified that the HCMCA requires that the claimant file a certificate of a qualified expert within ninety days of the filing of the statement of claims. With the certificate, a claimant is also required to file a report of the attesting expert. Here, the estate was required to start again before the arbitration panel and could not instead file a new civil action in the circuit court. The court concluded that HCADRO is the proper forum to determine whether limitations have expired, whether limitations have been tolled, or whether the failure to file a proper certificate is neither willful nor the result of gross negligence.
The court also held that expert testimony was required to establish the standard of care applicable to hospitalist. With regard to the hospital, the estate failed to identify an expert, and therefore there was no expert testimony to establish the standard of care. With regard to the hospitalist, the estate conceded on the record that her expert, a neurologist, could not testify with respect to the standard of care that is expected of a hospitalist. Because she could not show the applicable standard of care, she could not prove malpractice.
The court held that the estate was not entitled to an opportunity to correct its deficient identification of an expert witness. The estate did not comply with the scheduling order in identifying an expert, nor did it respond to the motion for summary judgment that was pending for failure to identify an expert, and the trial court noted that this lack of response was consistent with the history in this case.
Finally, the court held that the estate was not entitled to a grant of its motion to alter or amend following the court’s entry of summary judgment for the hospital and hospitalist. The estate had already conceded that its expert witness, a neurologist, could not testify to the standard of care applicable to the hospitalist. The attached affidavit did not include information from events occurring after the entry of judgment, but only revised the expert's statements of his qualifications. The statements still referred to the expert’s neurological knowledge that the estate had previously conceded made the expert unqualified to provide a standard of care for a hospitalist.
See: Puppolo v. Adventist Healthcare, Inc., 2013 WL 6687589 (Md.App., December 19, 2013) (not designated for publication).
See also Medical Law Perspectives, October 2013 Report: Brain Aneurysm and Subarachnoid Hemorrhage: Failure to Diagnose, Delayed Diagnosis, Misdiagnosis
See also Medical Law Perspectives, May 2013 Report: Drugs, Dosage, and Damage: Physician Liability for Prescribing or Administering Medication
See also Medical Law Perspectives, December 2012 Report: When Urgency Leads to Errors: Liability for Emergency Care
See also Medical Law Perspectives, June 2012 Report: Too Much, Too Little, Too Late: Injuries from Delays and Failures to Perform CT Scans or Overexposure to Radiation